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INDEX OF LITIGANTS.

B. Page

Bhebheza Fuleni vs 101

Bubi and Ano. vs. Mahlokomane 99

Butelezi vj. Mtetwa 22

Cele Putini and Ano. vj 31

Dejasmarch Ntlako vi 103

Dhlalisa V5. Mdhlalose 24

Dhlamini vj. Mahlaba 6

Dhlamini vj. Mate 60

Dikoma vj. Kolwani 56

Fuleni vj. Bhebheza 101

Gasa Nxumalo vj 30

Gaulakaya v^. Tonyela 94

Hlatuka Landingwe vj 90

Jiyane Rubushe vj 69

Kambula Nampetshwa vj 43

Khabane vj. Khabane 25

Koloti V5. Somyo 116

Kolwani Dikoma vj 56

Kwinana and Ano. vj. Lengesi and Ors 118

Landingwe vj. Hlatuka 90

Langa Makoba vj 76

Lebogo vj. Malapo and Ano Ill

Lengesi and Ors. Kwinana and Ano vj 118

Luvuno Mahlobo vj. 45

Mabele vj. Pungula and Ors 48

Macasa Mnyataza vj 28

Magwaza vj. Ntombela 15

Mahlaba Dhlamini vj 6

Mahlobo vj. Luvuno 45

Mahlokomane Bubi and Ano. vj 99

Makhoro vj. Matebese 64

Makoba vj. Langa 76

Malapo and Ano. Lebogo vj Ill

Malunga Rabotata vs. 96

Mano Ngwekulu vj 3

Manzini Ngwenya vj 108

Mate Dhlamini vj 60

Matebese Makhoro vj 64

Mbata vj. Mdhlalose 18

Mbata Ndhlovu vj 13

Mbuyazi vj. Mthethwa 54

Mdhlalose Dhlalisa vj 24

Mdhlalose Mbata vj 18

Mnyataza vj. Macasa 28

Mosehla vj. Mosehla 105

Mpantsha vj. Ngolonkulu and Ano 40

Mpayi Zondela vj 92

Mtetwa Butelezi vj 22

Mthethwa Mbuyazi vj 54

N. Page

Nampetshwa vj. Kambula 43

Ndhlovu Mbata 13

Nene and Ano. Tsautsi vs 73

Nene Nzuza vj 51

Ngolonkulu and Ano. Mpantsha vj 40

Ngwekulu V5. Mano 3

Ngwenya vj. Manzini 108

Njombani vj. Tshali 62

Nkosi vj. Zwane 110

Ntlako vj. Dejasmarch 103

Ntombela Magwaza vs 15

Ntumbu Sineke vj 67

Nxumalo V5. Gasa 30

Nxumalo vj. Nxumalo 20

Nzuza vs. Nene 51

Pungula and Ors. Mabele vj 48

Putini and Ano. vs. Cele 31

Rabotata vj. Malunga 96

Rubushe vj. Jiyane 69

Sineke vs. Ntumbu 67

Sishuba vs. Sishuba 114

Somyo Koloti vs 116

Thambe and Ors. Twesha vj 86

Tonyela Gaulakaya vj 94

Tsautsi vj. Nene and Ano 73

Tshali Njombani vj 62

Twesha vs. Thambe and Ors 86

Umvovo vj. Umvovo 80

Zondela vj. Mpayi 92

Zwane Nkosi vj 110

SUBJECT INDEX.

Abyssinian — Page

Aboriginal race or tribe of Africa 103

Administration Act, Native (No. 38 of 1927). —

Section 10 Ill

11(1) 80

15 54, 111

„ 18 6, 86

22 (6) 105

„ 22 (7) 25

., 35 62. 103

Adultery —

Catch 28

Ceremony for child 99

No action where customary union dissolved 62

Proof of 99

Specific acts must be proved 28

iii

Animals— Page

Damage by 76

Negligence of owner 76

Appeals to Appellate Division —

No important question of law 86

No reasonable prospect of success 6

Appeals to Native Appeal Court —

Condonation of late noting 86, 103

Security: giving of 103, 108

Assault —

Assessment of damages 15

Damages: Liability of guardian 15

Bavenda Custom —

Refund of Lobolo : widow past child bearing age returning
to her people 3

Bechuana Custom —

Kraalhead liability 56

Children —

Custody: Marriage by Civil rites 105

Maintenance: Illegitimate child: Liabilty of natural

father in Natal 45

Parternity: Evidence of mother of child essential 24

Code—

See “ Natal Code of Native Law

Condonation of late Noting of Appeals —

See “ Practice and Procedure — Appeals ” and “ Appeals
Contracts —

Interpretation under Native Custom 80

Costs in Native Appeal Court —

Absolution jugdment substituted on appeal 90

Courts: Native Appeal Court (see also “ Rules ”).

Attorney not specifically instructed to appeal 94

Security 103, 108

Courts: Native Chiefs’ Courts (See also “Rules”).

Appeal: Application for extension of time 18

Particulars required to be lodged by Chief not furnished. . 18

Where no jurisdiction conferred on Chief 110

Courts : Native Commissioners’ Courts (See also “ Rules ”) —

Witness: Calling of by Court 30

Curator ad Litem —

Only to be appointed of Court considers it necessary 20

Customary Union (See also “ Lobolo ”) —

Actions in connection with to be brought against guardian 40

Desertion by wife 92

Dissolved by subsequent civil marriage 62

Divorce at instance of wife 54

Misconduct by engaged girl 43

Mother acting for guardian 40

Northern Districts of Natal: Official witness 13

Order for return of lobolo 54

Putuma: husband must, before suing 92

Widow, past child bearing age 3

Customs : See “ Native Customs

D-

Damages — Page

Animals: Damage caused by 76

Assault 15

Defamation 67, 118

Mitigation of damages 101

Trespass 51

Defamation —

Defence of fair comment 117

Quantum of damages 68

Words defamatory per se 118

Words in Xoza connotation being defamatory 6/,

Default Judgment: See “Judgment” and “Rescission of

Judgments

Delicts: see under various headings.

Divorce : see “ Husband and Wife ”,

Dowry : see “ Lobolo ”,

Eiectment —

Based on dominium 48

Writ for ejectment supended: failure of conditions of

suspension • 96

Estates —

Civil marriage: Community excluded 105

Civil marriage in community of property 114

Devolving under Roman-Dutch law: Enquiries 116

Enquiries 25, 116

Prescription 116

Evidence —

F/ve voce evidence: contradictory affidavits Ill

Exceptions —

Not taken in Court below 67

Execution —

Warrant for ejectment: suspension of 96

Fraud —

Judgment obtained by: rescission Ill

Girls — G.

Allotments of : see “ Native Customs ”,

Heir —

Liability under contracts by deceased 80

Surviving widow 25

Hlagwini Custom —

Father liable for dowry of son’s first wife 69

Husband and Wife —

Adultery: specific acts to be proved 28

Custody of children on divorce 105

Divorce at instance of wife 54

Order for refund of lobolo on divorce 54

Immovable Property —

Ejectment from 48

Purchase of, in Natal Law 12/1884 (Natal) 48

Interpleader —

Ownership: passing of 64

Interpretations — Page

Aboriginal race or tribe of Africa 103

I N PARI DELICTO Rule—

Application of 6

IsoNDHLO — See “ Maintenance

Judgments: Native Appeal Court: —

Absolution judgment substituted on appeal 90

Judgments: Native Chiefs’ Courts —

Void where no jurisdiction conferred on Chief 110

Judgments: Native Commissioners’ Courts —

Absolution judgment not competent where onus on defen-
dant 60

For defendant: where competent 90

Rescission of, where obtained by fraud Ill

Rescission of where void ab origine 54

Jurisdiction : Native Chiefs’ Courts —

Where concurrent with Native Commissioners’ Courts. ... 73

Jurisdiction: Native Commissioners’ Courts —

Where concurrent with Chiefs’ Courts 73

Kraalhead —

Liability for damages for assault 15

Liability in Bechuanaland 56

Land —

Purchase of in Natal: Law 12/1884 (Natal) 48

Late Noting of Appeal—

From Chiefs’ Courts 18

From Native Commissioners’ Courts 86, 103

Lobolo —

Father’s liability to provide : Hlangwini custom 69

Fines merge in 40

Man cannot hold two dowries in respect of same woman 43

Misconduct of engaged girl 43

Order for refund on divorce 54

Putuma where wife deserts 92

Refund of engagement cattle 43

Refund of : widow past child bearing age 3

Teleka 92

Maintenance —

Illegitimate child: Liability of natural father in Natal 45

Marriage by Christian Rites —

Community excluded : estate 105

Custody of children on divorce 105

Dissolves customary union 62

In community of property : estate 114

Marriage by Native Custom —

See “ CusTOMERY Union ” and “ Husband and Wife
Mbeko Beast —

Is a gift 22

Minors —

Action on behalf of, against guardian 20

N. Page
Natal Code of Native Law (Proclamation No. 168 of 1952) —

Section 50 (2) 20

Section 141 15

Natal Code of Native Law (Natal Law No. 19 of 1891) —

Section 148 13

Section 151 13

Native Appeal Courts: See “Courts: Native Appeal”.

Native Chiefs’ Courts: See “Courts: Native Chiefs’”.

Native Commissioners’ Courts: See “ Courts: Native Commis-
sioners ”.

Native Customary Union —

See “ Customary Union ” and “ Husband and Wife
Native Customs —

Mbeko beast 22

See “ Lobolo ” and “ Customary Union ”.

Natives’ (Urban Areas) Act No. 25 of 1945.

Section 1 6

Section 9 (5) 6

Section 46 (2) 6

Notice of Appeal: See “Appeals” referring to various Courts.

Official Witness —

In Northern Districts of Natal after 1903. . 13

Onus —

Where on defendant, absolution judgment not competent. 60

Ownership —

Passing of. 64

Party —

Citing of parties 15

Order for refund of lobolo in action for divorce where father
not party 54

Paternity : see “ Children ”.

Pleas —

Res Judicate: raised by Court mero mo/w 73

Practice and Procedure —

Action on behalf of minor against guardian 20

Admissibility of pleadings in other cases 69

Appeals:

To Appellate Division :

No important question of law 86

No reasonable prospect of success 6

To Native Appeal Court:

Attorney not specifically instructed to note and prose-
cute appeal 94

Condonation of late noting of appeal 86, 103

From Chiefs’ Courts :

Application for extension of time in which to note ap-
peal 18

Jud^ent void if no jurisdiction conferred on Chief 110
Particulars required to be lodged by Chief not furnished 18

Application for rescission: Affidavits contradictory Ill

Attachment by Messenger of the Court 31

Available witness not called by party 22

Vll

Case of one party to be closed before other party gives

evidence 30

Citing of parties 15

Finality in litigation 22

Judgment for defendant: when competent 90

Onus on defendant : Absolution judgment not competent 60

Rescission of judgment which was obtained by fraud Ill

Rescission of judgment which was void ab origine 54

System of law to be applied 80

Witness: available witness not called 22

Witness: calling of by Court 30

Prescription —

In Native estates devolving according to Native custom. . 116

Purchase and Sale —

Immovable property (in Natal) 48

Purchaser’s right to obtain transfer 31

PUTUMA —

Essential where wife deserts 92

letter of demand not sufficient 92

Reasons for Judgment —

See “ Appeals ” and “ Judgments ” under various Courts.
Rescission of Judgments —

Judgment void ab origine 54

Judgment obtained by fraud Ill

Vive voce evidence necessary where affidavits contradictory 111
Res Judicata —

Plea of, raised mero motu by Court 73

Rules: Magistrates’ Courts —

Rule 39 (2) 31

Rules: Native Appeal Courts —

Old Rule 6 86

Old rule 8 (3) 103

Rules: Native Chiefs’ Courts —

Rule 14 18

Old Rule 7 18

Rules: Native Commissioners’ Courts —

Rule 10 31

Rule 35 31

Rule 53 (7) (8) (9) and (13) 30

Old rule 30 54, 111

Sale — see “ Purchase and Sale ”.

Seduction —

Admission by man of intercourse 45

Kraalhead liability in Bechuanaland 56

Paternity: Evidence of seduced woman essential 24

Person entitled to seduced girl’s lobolo must sue 24

Statutes, Etc. —

See “ Administration Act, Natives ”.

See “ Natal Code of Native Law ”.

See “ Natives’ (Urban Area.s) Act ”.

Act No. 5 of 1910 Section 13 (1) 31

Act No. 32 of 1917 Section 57 31

Act No. 32 of 1944 Sections 67 and 68 31

Act No. 43 of 1950 Section 23 96

viH

S. Page

Natal Law No. 12/1884 Sections 1 and 2 48

Natal Law No. 46 1887 Section 11 105

Proclamation No. 29 of 1937 6

Government Notice No. 1664/29 25, 105, 116

Succession —

Where marriage by civil rites: community excluded 105

Where marriage by civil rites: in community 114

System of Law to be AppuEr) —

Native Commissioner's discretion 80

Teleka —

Defence of 92

Trespass —

Pecuniary loss 51

Vindication of right 51

Venda Custom —

Widow past child bearing age returning to her people 3

WtDOWS —

Past childbearing age returning to her people: refund of

lobolo 3

Wife —

Customary union: property acquired by wife 40

Witnesses —

Available witness not called 22

Calling of, by Court 30

Words and Phrases: Interpretation of —

Aboriginal race or tribe of Africa 103

Writs —

For ejectment: suspension: failure of conditions of suspen-
sion 96

VERSLAE

VAN DIE

NATURELLE-

APPELHOWE

1952 (2)

REPORTS

OF THE

NATIVE APPEAL
COURTS

DIE STAATSDRUKKER ♦ PRETORIA ♦ THE GOVERNMENT PRINTER

Page 127 to follow on page 123
as numbers 124, 125 and 126 not allocated.

127

NORTH EASTERN NATIVE APPEAL COURT.

N.A.C. CASE No. 4/52.

MAJOZI V. MAJOZI.

Pietermaritzburg: 15th April, 1952. Before J. H. Steenkamp,
Esq., President, and Messrs. Balk and Oftebro, Members of
the Court.

COMMON LAW.

Judgment debt — Tender to pay into Court after judgment —
Tender not communicated to judgment creditor— ^hief pre-
siding over Court functus officio once judgment given — Judg-
ment debtor’s duty as regards liquidation of judgment debt —
Court officials not agents of either party.

Summary: After a Chief had given judgment, the judgment
debtor tendered to that Chief an amount in settlement of the
judgment debt; this tender was not communicated to the
judgment creditor, who subsequently caused the Chief’s
Messengers to attach cattle of the judgment debtor.

Held: That as the Chief became functus officio once he had
pronounced judgment, and as he was not authorised by the
judgment creditor to accept any tender made on his behalf, a
tender made to such Chief would not liquidate the judgment
debt where it was neither communicated to nor accepted by
the judgment creditor.

Held further: That it is the duty of the judgment debtor to seek
out the judgment creditor and liquidate the judgment debt.
Held further: That the presiding Chief acted in a judicial
capacity when he gave judgment and is not thereafter the
agent of either judgment creditor or judgment debtor.

Appeal from the Court of the Native Commissioner, Msinga.

Steenkamp (President) : —

From the record it appears that the present plaintiff (herein-
after referred to as the “judgment debtor”) had, in a previous
case, been sued by his father, who is now defendant (hereinafter
referred to as the “judgment creditor”), and who had obtained
a judgment in the Chiefs Court against the judgment debtor for
two head of cattle.

After the judgment the judgment debtor took an ox and £3 to
the Chief in settlement of the judgment debt. That ox and the
£3 were never paid over to the judgment creditor who thereafter
approached the Chief to send a messenger to attach the judgment
debtor’s property in settlement of the judgment debt. This was
done about eighteen months prior to the issue of the present
summons. The Chief’s messenger attached two head of cattle and
handed them over to the judgment creditor. The judgment
debtor then sued the judgment creditor for the return of the two
head of cattle which he alleges should never have been attached,
seeing that he had tendered an ox and £3 in settlement of the
judgment debt in the previous case.

The Assistant Native Commissioner gave judgment in favour
of the present plaintiff (judgment debtor), and against that judg-
ment an appeal has been noted to this Court on the following
grounds: —

“1. On the evidence as a whole the Assistant Native Commis-
sioner should have found that the cattle in dispute were
not spoliated from plaintiff by defendant but were law-
fully attached by the Tribal Messenger in pursuance of
the judgment pronounced by Chief Mqati Majozi in the
Native Chiefs Court, Case No. 151/1949.

128

2. The Native Commissioner erred in holding that the present

plaintiff had settled the judgment in the aforesaid Case
No. 151/1949, and should have held that any offer of
settlement that was made by the present plaintiff (defen-
dant in Case No. 151/1949) was neither communicated
to, nor accepted by, the present defendant (plaintiff in
Case No. 151/1949).

3. The Assistant Native Commissioner should have held that

Chief Mqati Majozi became functus officio once he had
pronounced judgment in Case No. 151/1949, and that he
had no power thereafter to compel the present defendant
(plaintiff in that case) to accept a beast and £3 in
settlement of a judgment for two beasts, and the Assis-
tant Native Commissioner should further have held that
Chief Mqati Majozi was not authorised by plaintiff to
accept a tender of one beast and £3 on his behalf.”

These grounds, in my opinion, are well taken, and the Assist-
ant Native Commissioner in his reasons for judgment admits that
in his verbal judgment he erred in stating that the judgment
debt was extinguished by the offer of settlement made by the
judgment debtor. He further states that at that time it seemed
to him inequitable and not in accordance with natural justice
that an attachment should have been permitted by the Chief
while knowing that the judgment debtor had made a tender and
that such tender had not been communicated to the judgment
creditor. He goes on and states that notwithstanding this mistake
on his part, he is of opinion that he gave the correct judgment
because — firstly, the tender still stood at the time of attachment
and still stands to-day and the Chief could not have authorised
the attachment before communicating the offer to the judgment
creditor, and only if the offer had been rejected then, and then
only, could he have authorised the attachment; secondly that
the Chief was not functus officio in so far as the consequences
of his judgment, viz., communicating the offer of the judgment
creditor, and if rejected, authorising the attachment, were con-
cerned; thirdly, since the attachment was wrongful, the judgment
debtor had the right to follow up his cattle. It is also stated
by the Assistant Native Commissioner that these three reasons
of his are in accordance with natural justice. He also seems to
be under the impression that a most undesirable state of affairs
would arise should an unscrupulous Chief be permitted to mis-
appropriate cattle and moneys paid into Court as tenders and
thereafter authorise attachments in respect of the same judgment
debts without revealing the tenders to the judgment creditor.

1 am afraid that this reasoning of the Assistant Native Com-
missioner cannot be regarded as sound, as it follows that if a
person feels that the Chief’s actions were such that he has suffered
damage, he has the Common Law remedy to sue for any damages
he might have suffered. 1 fail to see how the judgment creditor
should be depireved of his remedy to cause an attachment to be
made in respect of a competent judgment in his favour when the
debt has not been paid to him personally. A judgment creditor
is not concerned with what might have happened between the
judgment debtor and the Court officials. After all, when a person
has a judgment in his favour, he is entitled to be paid and it
is the judgment debtor’s duty to seek out the judgment creditor
and liquidate the judgment debt. He cannot shield behind the
fact that he paid the money into Court without any notification
being made fo the creditor. It should be emphasized that the
Chief acted in a judicial capacity when he gave the judgment
and is not thereafter the agent of either the judgment creditor
or the judgment debtor.

As is manifest from the evidence, the tender by the judgment
debtor, which was not in conformity with the Chief’s judgment,
was neither communicated to nor accepted by the judgment
creditor; and, as is equally clear therefrom, the judgment had not
been satisfied when execution was levied, and the attachment
in question was a valid one.

129

In my opinion it follows that the appeal must succeed and
that the Assistant Native Commissioner’s judgment should be
altered to read; —

“ For defendant with costs.”

Balk (Permanent Member): I concur.

Oftebro (Member): I concur.

For Appellant: Adv. W. G. M. Seymour, instructed by Messrs.
Nel & Stevens.

For Respondent: Adv. J. H. Niehaus, instructed by E. Gordon,
Esq.

NORTH EASTERN NATIVE APPEAL COURT.

N.A.C. CASE No. 10/52.

MNTAKA V. NGCEMU.

Pietermaritzburg: 16th April, 1952. Before Steenkamp,

Esq., President, and Messrs. Balk and Oftebro, Members of the
Court.

COMMON LAW.

Jurisdiction of Native Commissioner's Court — Section ten (1) (a).
Act No. 38 of 1927 — “Matters in which the status of a person
in respect of mental capacity is sought to be affected ” — Plea
to the effect that at time contract was entered into, one party
to the contract was not in possession of his mental faculties.
Practice and Procedure: Onus of proof on Defendant.

Summary: Plaintiff sued Defendant nomine officio for transfer
of land to which Defendant, although not admitting the
alleged sale, pleaded that if the contract was entered into as
alleged, the seller, who is now deceased, was at that time
not in possession of his mental faculties and being non
compos mentis, he was incapable in law of entering into
such contract.

The question of jurisdiction was raised by the Court a quo
and by the Native Apeal Court.

Held: That the Native Commissioner’s Court had jurisdiction
to hear the case.

Held further: That the onus to prove that the deceased’s

mental capacity was impaired to such an extent that the
Deed of Sale is not valid was on the Defendant and that as
he had failed to discharge such onus. Plaintiff was entitled
to succeed.

Cases referred to:

Madhludi v. Rex, 26 (1905), N.L.R., 298.

Robinson v. Rolfes, Nebel & Co., 1903, T.S. 543.

Bertram v. Wood, 10, S.C. 177.

Champion v. Meyers, 29, N.L.R., 382.

Spence v. Harris, 36, N.L.R., 538.

Jackson «&, Co. v. Eggeling, 1913, T.P.D., 403.

Maduray v. Simpson, 1932, N.P.D., 521.

Fortes v. City, 1935, C.P.D., 195.

Van Zyl v. De Beer, 1940, O.P.D., 145.

De Villiers & Anr. v. De Villiers, 1949 (2) S.A., 173 (C.P.D.).
Commissioner for Inland Revenue v. Paarl Wine & Brandy
Co., Ltd., 1946, A.D., 643.

Murison v. Murison (otherwise Smith), 44, N.L.R., 5.
Father v. Rex, 45, N.L.R., 280.

Statutes referred to:

Section ten (1) (n). Act No. 38 of 1927.

Sections thirty-seven (2) and forty-four of Act No. 31 of 1917.

130

Appeal from the Court of the Native Commissioner, Ixopo.

Steenkamp (President); —

In the Native Commissioner’s Court the plaintiff sued the
defendant in his capacity as executor in the estate of the late J. J.
Mntaka for a declaration that plaintiff is entitled to receive
transfer of Sub. 1 of the Farm B of B.N. No. 7976, situate in the
county of Pietermaritzburg, Province of Natal, in extent 99 ■ 9993
acres. Secondly that defendant (or any successor in office) in
his capacity as the executor of the estate of the late J. J. Mntaka
be and he is ordered to hand over the title deeds of the property
farm B of B.N. No. 7976 to the plaintiff or his nominee and to
sign alt the necessary documents when tendered for signature, in
order to give effect to such transfer.

Defendant’s plea, although not admitting that the plaintiff had
purchased the property in question from the late J. J. Mntaka,
avers that if the contract was entered into and alleged in the
summons, such contract is invalid by reason of the mental
incapacity of the late J. J. Mntaka to enter into such contract,
the said Mntaka not being at the time alleged, in possession
of his mental faculties and being non compos mentis and
incapable in law of entering into such contract.

On the day the case was set down for hearing, the Court a quo
raised the question of jurisdiction in view of the provisions of
section ten (1) (a) of the Native Administration Act. This section
reads: —

“ Provided a Native Commissioner’s Court shall have no
jurisdiction in matters in which the status of a person in
respect of mental capacity is sought to be affected.”

Attorney for defendant and the attorney for plaintiff were
called upon to argue on the question of jurisdiction. After
argument the Assistant Native Commissioner ruled that the Native
Commissioner’s Court has jurisdiction to try the issue.

The A'sistant Native Commissioner gave judgment in favour
of plaintiff, and an appeal has now been noted by the defendant
to this Court, the Assistant Native Commissioner’s judgment
being to the effect that the defendant has not proved that the
late J. J. Mntaka, a the time he entered into the contract, was
incapable of understanding and appreciating the contract into
which he purported to have entered. This Court being doubtful
as to whether a Native Commissioner’s Court had jurisdiction
to decide whether the status of the late J. J. Mntako was that
of a person in possession of all his faculties, called upon Counsel
for both parties to argue this aspect.

To enable this Court to decide whether section ten (1) (a) of
the Native Administration Act is applicable to a case of this
nature, it is necessary to give an interpretation to the meaning
of this particular provision in the Act. First of all we have
to decide what is meant by the word “ status ”.

From the various authorities and decided cases quoted by my
brother Balk in a dissenting judgment, it would seem that to
define the word “ status ” is no easy matter. Every person from
the moment he is born has a status, either one acquired by
force of law, which I will call an ipso jure status, or one
acquired by an order of Court. Primarily the status of a human
being is that which he acquires by force of law during the various
stages of his or her life. Let me, for example, mention that
from the date a person is bom to the date he reaches 21 years
of age, he is, in the eyes of the law, a minor, i.e. his status is
that of a minor with resultant contractual disabilities. That
status may, by order of Court, be altered at any time during
minority and he or she may be assigned the status of a major,
which gives him or her certain rights not previously possessed.
After reaching majority, the new status so obtained may again
ipso jure be curtailed, for example, in the case of a female oi
marriage.

It seems clear to me when we deal with the status acquirea
by force of law that status continues, and only force of law

131

can alter it or the Supreme Court of the country has the right
at any time, for good cause shown, to alter that status. If a
person becomes incapable of managing his affairs, the Court may
declare that his mental capacity is affected, and he then receives
a status other than that which he enjoyed immediately prior to
the order of Court.

If during the time a person enjoys full status (i.e. the status
he acquired by force of law on reaching the age of majority
which gives him full contractual capacity), he becomes dis-
abled, either by drunkeness or mental abberation, then it cannot
be accepted that his status has automatically gone through a
process of alteration. Only a Court of Law with jurisdiction to
deal with status, may declare a change of status. All I am
prepared to say is that the person is suffering from a disability
which may only be of a very temporary nature or may be the
commencement of a state which will eventually lead to a change
of status which only a competent Court of Law may bring
about, and until that is done, an Inferior Court may not go
further than declare that at the time the contract was entered
into the party did not fully realise the purport of the agreement
owing to his state of mind. For the same reason an Inferior
Court may adjudicate on the question whether an illiterate person
understood the document he was signing. It may also decide
the question whether intoxication at the time was such that the
person did not understand the document. These two examples
go to illustrate that incapacity does not necessarily mean an
alteration of a person’s status and why should mental abberation
automatically have such an effect. I cannot see this, and hold
the view that only an order of Court with jurisdiction, can
alter a person’s status. To suffer from certain disabilities, either
physical or mental, does not alter status unless so declared by
a Court of Law.

In the present case all the plea amounts to is that at the time
the contract was entered into, the deceased suffered from a
disability recognised by a Court of Law as being sufficient for
the impeachment of the contract. It does not suggest, because
that disability existed, an automatic change of status took place.

The sub-section of Act No. 38 of 1927, already referred to,
in my opinion, seeks to prevent the Native Commissioner’s Court
from hearing a case in which application is made for the altera-
tion of a person’s normal status to that of a person of unsound
mind.

I therefore hold that the Native Commissioner’s Court had
jurisdiction to hear the case. My brother Balk, however, does
not agree that the Native Commissioner’s Court had jurisdiction.

Oftebro (Member): —

I agree that the Native Commissioner’s Court had jurisdiction.
My view is that the legislature, whilst conferring very wide
jurisdiction upon Native Commissioner’s Courts in all civil causes
and matters between Native and Native, nevertheless, in view of
the provisions of the Mental Disorders Act, and the jurisdiction
of the Supreme Court thereunder, had to restrict the Native
Commissioner’s Courts from deciding on the status of a person
in regard to mental capacity. In my opinion the object of the
proviso [section ten (1) (a) of Act No. 38 of 1927], is merely to
prohibit a Native Commissioner’s Court from declaring that a
Native is, or is not, mentally disordered or defective. I do not
think that it was intended to apply to isolated instances of
mental capacity where a contract, as in this instance, is con-
cerned.

Steenkamp (President): Continues on the merits of the case: —

After evidence had been led, the Additional Native Com-
missioner gave judgment for plaintiff as prayed, with costs, and
against this judgment an appeal has been noted to this Court on
the following grounds: —

“1. The learned Additional Native Commissioner erred
in rejecting the evidence led by defendant as to the mental
capacity of the late Jeremiah Mntaka and such rejection was
not justifiable in law.

132

2. That insufficient weight was attached to the medical
evidence for the defendant.

3. That there was sufficient evidence to prove that the
late Jeremiah Mntaka suffered from mental incapacity in
March, 1947, and at his death in 1949 and the learned
Additional Native Commissioner erred in not holding that
the onus shifted to respondent (plaintiff in the Native Com-
missioner’s Court) to prove a lucid interval at the time of
signature of the agreement.

4. The learned Additional Native Commissioner erred in
rejecting the evidence of many of appellant’s witnesses on
the grounds that they were laymen and in basing his
decision on the evidence of respondent’s witnesses who were
all laymen.

5. That the learned Additional Native Commissioner erred
in his refusal to consider the circumstances of the Will in the
case and his decision thereon was bad in law.”

The facts of the case are that on the 7th May, 1948, a Deed of
Sale, drawn up by Mr. Attorney Bulcock, was signed in his
presence by the late J. J. Mntaka, whereby he sold to the plain-
tiff certain portion of a farm already referred to. In this Court,
Counsel for defendant (now appellant) confined his argument to
the question as to whether the deceased was mentally capable of
entering into such an agreement. There is no other dispute, and
if this Court finds that the deceased knew what he was doing
at the time he signed the document, then the plaintiff (now
respondent) must succeed in his claim.

The onus was on appellant to prove that the deceased’s mental
capacity was impaired to such an extent that the Deed of Sale
is not valid.

In support of his allegation the appellant called a medical
practitioner by the name of Dr. Hugh Smeath-Thomas, who
was a houseman at the King Edward Hospital during the period
the deceased was a patient at the Hospital and where he was
being treated from the 18th February, 1947, to the 2nd March.

1947, for an illness diagnosed as senile mental changes from
which he still suffered on discharge. The deceased was again
admitted to the same Hospital in May, 1949, but the medical
practitioner who attended him then was not called as a witness.

Here it should be mentioned that deceased died during June.
1949. after a spell in hospital, according to the evidence of
appellant. The Deed of Sale was entered into on the 7th May,

1948, i.e. about a year prior to the second time deceased was
admitted to hospital and approximately a year and two months
after he was first admitted to that institution.

In considering the evidence of Dr. Smeath-Thomas, it must
primarily be pointed out that he is not an alienist or psychiatrist,
and therefore his evidence is not to be relied upon to the same
extent as that of a more experienced medical practitioner. There
is, however, one piece of evidence standing out and that is when
he states that in his opinion cases of the nature of Jeremiah
Mntaka (deceased) may permit of lucid intervals, but on the
other hand, a patient may have no lucid intervals at all. He
goes on in his evidence and states “ a person suffering from
senile dementia is still capable of lucid intervals.” The doctor
then gives his opinion that even during lucid intervals he doubts
if a person suffering from senile mental changes would be
capable of transacting business ■'O as to appreciate all the aspects
involved and the sequelae of such business.

This is a very doubtful expression, especially as the doctor also
states that he is unable to say to what extent the deceased’s
business acumen was affected by the condition “ senile mental
changes ” as observed by him.

Sight must not be lost of the fact that the doctor only had
the deceased under observation for a period of about fourteen
days and there is no medical evidence to indicate whether
deceased’s condition deteriorated or improved and what his
mental state was at the time the contract was signed.

133

Even if we accept the evidence of the various witnesses who
are able to testify as to the deceased’s mental behaviour from
the time he was discharged from the hospital the first time, we
must be satisfied that when he appeared before Mr. Attorney
Bulcock, his mind was such that he suffered from a legal dis-
ability to enter into contract.

It must be remenbered that deceased owed the Land Bank.
K.nifc money and he instructed Mr. Bulcock to remit £400, being
the sale price of the land, to that Bank. Now, for deceased
to remember his indebtedness to the Land Bank, he could not
have been in such a mental state that he was unable to transact
business. Mr. Bulcock had known deceased and his wife, who
accompanied him, for many years, and to him deceased appeared
to be perfectly normal. Mr. Bulcock is certain that deceased
understood what he was doing and even mentioned that the
reason for the sale was to discharge the major portion of the
bond held by the Land Bank on the property. This evidence
of Mr. Bulcock of what deceased said to him confirms that
deceased knew what he was doing.

Reference has been made to a will signed by deceased on
the 4th March, 1947, a photographic copy of which is attached
to the record as Exhibit J.2. I do not think much importance
can be attached to the will which ex facie would appear to be
of no consequence seeing that we are dealing with an event
which occured more than a year later. The handwriting in the
Will is that of deceased and if anything, it strengthens the
assumption that even after discharge from hospital the first time,
the deceased was still able personally to write out such an
important document as a will, notwithstanding the doctor’s
evidence that his mind was not sound.

There is one significant factor in the case on which no
argument was offered by either Counsel. I refer to the cor-
respondence that took place between Mr. Bulcock, Attorney for
respondent, and Mr. Arenstein, Attorney for appellant, at the
time the administration of the estate was being attended to.
On the 30th November, 1949, Mr. Arenstein requested Mr.
Bulcock to forward to him the diagram of the property in
question. This was done by Mr. Bulcock, who, at the same
time, advised Mr. Arenstein that a client of his had purchased
100 acres of the property and that he required the Deed of
Grant and Title to enable him to pass transfer. This letter was
acknowledged by Mr. Arenstein with a promise to communicate
with Mr. Bulcock again. A reminder was sent on the 12th
January, 1950, to which a reply was received to the effect that
appellant was not in possession of the immediate Title and that
he was still awaiting further instructions from the Master of the
Supreme Court before he decided to make application to certify
the copy of the missing transfer.

Now, if appellant had any misgivings about the sale of the
property, he would, through his Attorney, have challenged the
sale by his father, but he did not do so and must, at the time,
have been satisfied that a valid sale had taken place.

In my opinion the appeal should be dismissed with costs. The
fees under items 4 and 5 of the Tariff are increased to £4. 4s.
respectively.

Oftebro (Member): I concur.

Balk (Permanent Member): Dissentiente : —

This is an appeal against the whole of the judgment of the
Court of Native Commissioner at Ixopo, given in favour of the
plaintiff (present respondent) in an action in which his claim
against the defendant (present appellant) who was sued in his
capacity as executor of the estate of the late J. J. Mntaka
(hereinafter referred to as “ the deceased ”), was firstly for a
declaration that he (plaintiff) was entitled to receive transfer of
certain land which he had purchased from the deceased, and
secondly for an order that the defendant take the necessary steps
to effect that transfer.

134

The defendant, without admitting the alleged contract of sale,
pleaded inter alia that if in fact it had been entered into, it was
invalid by reason of the mental incapacity of the deceased at the
time he did so.

The grounds of appeal are confined to the merits of the case.

Before proceeding with the hearing of this action on its merits,
the presiding Additional Native Commissioner in the Court a quo
raised the question of his jurisdiction proprio motu, to determine
whether or not it was ousted by the proviso to sub-section (1)
of section ten of the Native Administration Act, 1927, in view
of the defendant’s plea that the alleged contract of sale was
invalid by reason of the mental incapacity of the deceased at the
time at which he had entered into it.

After hearing argument by the Attorneys for the parties on
that point, the judicial officer concerned found that he had
jurisdiction and tried the case to its conclusion.

Although the Additional Native Commissioner’s finding that he
had jurisdiction is not one of the issues raised in the relative
notice of appeal. Counsel for the parties were called upon,
aher due notice, to argue that matter before this Court as its
determination is fundamental to the proceedings in the Court
below, since the parties cannot confer on that Court a jurisdiction
expressly excluded by Statute if in fact it is so excluded.

Except for the limitations imposed by the proviso to sub-section
(1) of section ten of the Native Administration Act, 1927, a
Court of Native Commissioner has, in terms of that sub-section,
an unfettered jurisdiction in respect of civil causes between Native
litigants.

The only of those limitations with which we are concerned
in the instant case, reads as follows: —

“ Provided that a Native Commissioner’s Court shall have
no jurisdiction in matters in which —

(a) the status of a person in respect of mental capacity is
sought to be affected; ”

This leads to a twofold enquiry, viz., the meaning of the
proviso concerned and its effect on the otherwise unfettered
jurisdiction of the Court a quo in the present action.

Counsel for appellant contended that that Court had jurisdic-
tion, in that the word “ status ” implied something with a degree
of permanence, so that the limitation concerned applied only
when the matter in issue was the declaration of a person as a
mentally disordered or defective person and not when it con-
cerned his mental capacity to enter into an isolated transaction.

Counsel for respondent also contended that the Court below
had jurisdiction. He sought to distinguish between mental
capacity and mental ability, but these terms appear to be
synonomous, vide Mahludi v. Rex, 26 (1905). N.L.R., 298, at
page 303. He further submitted that the criterion was the
declaration of a person as mentally disordered or defective and
not his mental ability in an isolated transaction. But to my
mind that submission is untenable in that a person who has been
declared to be mentally defective can subsequently, during a
lucid interval, enter into a valid contract, see Wille’s “ Principles
of South African Law” (Third Edition) at page 140 and the
authorities quoted in note 37 at the foot of that page.

The word “ status ” is not defined in the Native Administration
Act, 1927, nor in the Interpretation Act, 1910. It therefore
seems to me that the expression “ status of a person ” should be
given that shade of its accepted meaning as is dictated by its
present context and construed as — “ the position whieh a persona
occupies in the eye of the law ”, vide Bell’s South African Legal
Dictionary (Third Edition), and Madhludi v. Rex 26 (1905),
N.L.R., 298 at pages 303 to 305, and 310. Apart from its
relation to the status of a person, the expression “ mental
capacity ” is in no way restricted in its application by its present
context, so that ” mental capacity to enter into a contract ”
appears to fall within he ambit of the proviso in question. This
view gains support from the following passage in Lee’s ” Introduc-
tion to Roman Dutch Law” (Third Edition) at page 118; —

135

“ It is tempting to speak of unsoundness of mind as con-
stituting a status, but it would not be correct to do so for
mental unsoundness is not necessarily permanent or con-
stant and a question which must be answered is not — ‘has
the man been declared mad? but ‘ was he in fact incapable
of understanding the particular transaction which is brought
in issue ’? ”

In other words, it is mental capacity to enter into a transaction
that constitutes a status.

In my opinion it follows that once the mental incapacity
of a person to have entered into a contract forms the basis of any
claim or counterclaim in a civil action between Native litigants,
it constitutes a matter affecting such person’s status within the
meaning of the said proviso and ousts the jurisdiction of a Native
Commissioner’s Court in such an action; and the fact that the
person whose mental capacity is in question, is dead at the time
of the action, does not appear to affect the position that the
jurisdiction is ousted since the criterion is not litis contestatio
but the time at which such person entered into the contract, see
the above-quoted excerpt from Lee’s publication.

But can it be said that these principles ought to be applied
in a case as the present, wherein the mental incapacity of a
person to have entered into a contract does not form the basis
of a claim or counterclaim, but is in issue solely as a defence?

The correct common law view in cases in which it is
necessary for the Court to give a finding upon a matter beyond
its jurisdiction in order to decide a claim within its jurisdicton
appears to be that set out in the following passage of the
judgment in Robinson v. Rolfes, Nebel & Co., 1903, T.S. 543,
at pages 549 and 550: —

‘‘ But where the only issue before the Magistrate is the
claim, and that is upon the face of it within his jurisdiction,
surely his duty is to decide it. The fact that a defence is
raised which goes to the merits of the claim, and involves
the consideration of a matter in itself outside his jurisdiction
is to my mind no sufficient reason why the Magistrate
should not come to a conclusion upon the claim.”

It is true that a contrary view was expressed in Bertram v.
Wood, 10, S.C. 177, but the weight of subsequent decisions
indicates that Robinson’s case (supra) was correctly decided, see
Champion v. Meyers, 29 N.L.R. 382, Spence v. Harris, 36 N.L.R.
538, Jackson & Co. v. Eggeling, 1913 T.P.D. 403, Madurav v.
Simpson, 1932 N.P.D. 521, Fortes v. City 1935 C.P.D., 195, Van
Zyl V. De Beer, 1940, O.P.D. 145, and De Villiers & Another v.
De Villiers, 1949 (2), S.A. 173 (C.P.D.).

The Appellate Division decision in Commissioner for Inland
Revenue v. Paarl Wine & Brandy Co., Ltd., 1946, A.D. 643
does not appear to be in point as it seems to be based entirely
on the provisions of sub-section (2) of section thirty-seven of the
Magistrates’ Courts Act, 1917, and there are no corresponding
provisions in the Native Administration Act, 1927.

It is of interest that in the Fortes and Van Zyl cases (supra)
the view was expressed that sub-section (2) of section thirty-seven
probably owed its introduction in the Magistrates’ Courts Act,
1917, to the decision in Robinson’s case (supra). It is also of
interest that that sub-section, which is appended, has been re-
enacted in identical terms in the present Magistrates’ Courts Act
(No. 32 of 1944); —

“ 37. (2) Where the amount claimed or other relief sought
is within the jurisdiction, such jurisdiction shall not be ousted
merely because it is necessary for the Court, in order to
arrive at a decision, to give a finding upon a matter beyond
the jurisdiction.”

But if I understand the judgments in Robinson’s and the sub-
sequent cases (supra) correctly, the decisions therein are based
upon the fact that the relevant Magistrates’ Courts enactments
imposed no other restrictions upon the Magistrate’s jurisdiction

136

than a limitation based upon the sum or value of the right or
matter claimed; or where such enactments contained other
limitations upon the jurisdiction, those limitations had no
application, see the report of Robinson’s case at pages 545, 547,
548, 551 and 552 and the reports of the other cases referred to
above.

I have also referred to Murison v. Murison (otherwise Smith),
44, N.L.R., 5, and Father v. Rex, 45, N.L.R., 280. In Murison’s
case, which was an application for a maintenance order, it was
held that where the defence was that the applicant was not the
respondent’s wife, the Magistrate had jurisdiction to decide upon
the validity of the marriage, regard being had to section thirty-
seven read with section forty-four of the Magistrates’ Courts Act,
1917. In the other case it was laid down that the Magistrate had
jurisdiction to decide the paternity of an illegitimate child in
adjudicating upon a charge of contravening section three of the
Childrens’ Protection Act, 1913. But here too, neither of the
incidental matters, i.e. the validity of the marriage and the
paternity of the child, were expressly excluded from a Magistrate’s
jurisdiction by the Magistrates’ Court Act then in force (No. 32
of 1917) vide section forty-four of that Act.

The position appears to be entirely different in the instant
action. Here the jurisdiction of a Native Commissioner’s Court
is expressly excluded as it seems clear in the light of what has
been said above, that the proviso to sub-section (1) of section ten
of the Native Administration Act, 1927, in so far as it relates
to any matter in which the status of a person in respect of mental
capacity is sought to be affected, applies, and as, to my mind, the
language of that portion of the proviso is so wide that it
necessarily postulates an intention by the legislature to include
within its ambit all cases in which such status is brought in issue
irrespective of whether by way of defence or otherwise. It must
be added that where that issue is raised as a defence, this must
be done, not with the intention merely to oust the jurisdiction,
but bona fide as, from the evidence, appears to be the case in
the present action; see the cases quoted in the last paragraph on
page 85 and the first paragraph on page 86 of Jones and Buckle’s
“Civil Practice of Magistrates’ Courts in South Africa” (Fifth
Edition).

I therefore come to the conclusion that the jurisdiction of the
Native Commissioner’s Court was ousted in the instant action
by the said proviso.

In the result 1 am of opinion that the appeal should be allowed,
that the finding of the 29th June, 1951, by the Court a quo
that it had jurisdiction to try this case, and its ultimate judgment
of the 21st January. 1952, on the merits, should be set aside and
that in lieu thereof an entry be made on the record that the
Court a quo had no jurisdiction in this action.

I do not think the evidence recorded by the Court below should
be set aside as it, or at least some of it, was necessary to prove
that the defence was raised bona fide and not merely to oust
the jurisdiction of that Court.

In my view there should be no order as to costs both in this
Court and in the Court below, as the parties did not, in either
of these Courts, take the point on which the appeal has succeeded.

The majority of this Court having held that the Court a quo
had jurisdiction, I agree that the appeal on the merits must fail.

For Appellant: Mr. G. W. Clulow of Ixopo.

For Respondent: Adv. J. H. Niehaus, instructed by Mr. G. H.
Bulcock of Ixopo.

137

NORTH EASTERN NATIVE APPEAL COURT.

N.A.C. CASE No. 25/52.

MTIYANE V. MNCWANGO.

Mtubatuba: 22nd April, 1952. Before Steenkamp, President,
Balk and Fenwick, Members of the Court.

COMMON LAW.

Law of Contract — Application of doctrine of undue enrichment —
witnessing of agreements between Nadves.

Summary: Plaintiff claimed £5 for services rendered by him
to defendant. A Chief’s Court having given judgment for
£2 in plaintiff’s favour, defendant successfully appealed to
the Native Commissioner’s Court on the grounds that the
services were rendered in return for shelter which defendant
had given to plaintiff for a period of 12 months. Plaintiff
thereupon appealed to the Native Appeal Court.

Held: That the services were rendered as a quid pro quo for
shelter which plaintiff had received from defendant and con-
sequently the doctrine of undue enrichment cannot be
advanced in this case.

Held further: That it is usual for agreements between Natives
to be made in front of witnesses.

Appeal from the Court of the Native Commissioner, Nkandhla.

Steenkamp (President): — •

In the Chief’s Court the plaintiff (present appellant) obtained
judgment for £2 and costs on the claim of £5 which he alleged
the defendant owed him for certain services rendered at the kraal
of defendant while plaintiff was residing there. The defendant
was not satisfied with the judgment and he appealed to the
Additional Native Commissioner who upheld the appeal, and
entered judgment for defendant with costs. Against that judgment
an appeal has been noted on the following grounds: —

“ 1. That such judgment is against the evidence and the weight
of evidence.

2. That the learned Native Commissioner erred in holding
that on the evidence adduced, the plaintiff had failed
to prove that he was entitled to remuneration as alleged
either on contract or on the doctrine of unjust enrich-
ment or on any other grounds.”

It is common cause that the plaintiff was living at the kraal of
a man by the name of Majozi. He had a quarrel with Majozi
and then, with the permission of the defendant, lived at the
latter’s kraal. He apparently went there to stay only for a few
days until he could make other arrangements, but this visit of
his extended to twelve months, and during the time he stayed
there he performed certain services, i.e. he built or repaired a
cattle kraal, a mealie-stalk shelter and stable.

The Additional Native Commissioner in well prepared reasons
found the following facts proved: —

“ 1. Plaintiff went to defendant’s kraal after having left that
of Majozi as the result of a quarrel.

2. Plaintiff resided at defendant’s kraal for approximately

twelve months.

3. Whilst at defendant’s kraal plaintiff repaired a stable and

a kraal and erected a mealie-stalk shelter there.

4. Defendant told plaintiff to leave his kraal as he had been

there long enough.

5. When told to leave the kraal plaintiff did not raise any

Question of money owing to him, or of a quarrel.”

138

These facts are supported by the evidence. The Additional
Native Commissioner has considered all the aspects of the
evidence adduced before him and it is abundantly clear that
plaintiff is only claiming the amount of £S because defendant,
after plaintiff had received shelter for twelve months, informed
him it was now time to leave.

As pointed out by the Additional Native Commissioner in so
far as the question of unjust enrichment is concerned, it is
customary between Natives to render each other assistance in
regard to building operations at their kraals without there being
any question of payment therefor in cash. I also agree that this
is especially the case where persons are residing, either tempo-
rarily or permanently, at the kraal of another person.

If there had been an agreement between the plaintiff and the
defendant that the defendant would pay for his services, the
agreement would have been made in front of witnesses, which,
in this case, was not done. I fail to see how the doctrine of
undue enrichment can be advanced in the present case. It is
a question of a quid pro quo for shelter which plaintiff had
received from the defendant.

In my opinion the appeal should be dismissed with costs.

Balk (Permanent Member): I concur.

Fenwick (Member): I concur.

For Appellant: Mr. W. E. White of Eshowe.

Respondent in default.

NORTH EASTERN NATIVE APPEAL COURT.

N.A.C. CASE No. 6/52.

SITOLE V. SITOLE,

Durban: 28th April, 1952. Before Steenkamp, President, and
Messrs. Balk and de Vries, Members of the Court.

PROCEDURE.

Practice and procedure — Forwarding of records of cases in which
appeals have been noted — Noting of appeal — Unstamped notice
of appeal delivered prior to coming into force of new rules —
Document stamped after such rules came into force — Security
given on the 9th January, 1952, for £5.

Summaty: The original and copies of the record of proceedings
therein, which is a short one, were received by the Registrar
four months after the relative notice of appeal had been
delivered to the Clerk of the Court, and only a few days
before the date fixed for the hearing of the appeal. A
similar position exists in another case from the same centre.
The notice of appeal, unstamped, was delivered to the Clerk
of the Court on the 24th December, 1951. The stamps were
sent to and affixed by the Clerk of the Court after the 1st
January, 1952. Security in the amount of £5 only was given
on the 9th January, 1952.

Held: That as the prolonged delay in forwarding the records
to the Registrar seriously impeded the necessary preparatory
work by members of this Court in the two cases from this
centre, these lapses could not be allowed to pass, and the
Registrar was directed to transmit a copy of these comments
to the Secretary for Native Affairs.

Held further: That as the appeal was not properly noted until
aher the 1st January, 1952, the new rules published under
Government Notice No. 2887 of 1951, apply, and that
security in the amount of £7. 10s. should be deposited.

139

Statutes referred to:

Rules 6 and 8 of Government Notice No. 2254 of 1928.
Rules 5 (3) and 32 (2) of Government Notice No. 2887 of
1951.

Appeal from the Court of the Native Commissioner, Durban.

Balk (Permanent Member) : —

Judgment in this case in the Court a quo was entered on the
4th December, 1951, and the relative notice of appeal was
delivered to the Clerk of that Court timeously, but it is doubtful
whether it was stamped within the prescribed period of twenty
one days, since Counsel for appellant intimated to this Court
that the stamps in question had been forwarded with other
matter, which reached the said Clerk of the Court on the 9th
January, 1952; moreover the security for respondent’s costs of
appeal in the form accepted by the said Clerk of the Court
was lodged after the expiry of the said prescribed period.

Whilst the wording of the relevant Rules of this Court (Nos. 6
and 8, published under Government Notice No. 2254 of 1928)
and that of the corresponding Magistrates’ Courts Rule (No. 47)
is admittedly not identical, the intention underlying them is, to
my mind, substantially the same, viz., that the giving of security
for the respondent’s costs of appeal forms part and parcel of
the act of noting of the appeal, i.e. the noting of the appeal is
not complete without the giving of such security, since to hold
otherwise postulates the respondent’s being obliged to take steps
to meet the appeal without security for his costs and so involves
him in potential loss which could hardly have been contemplated
by the legislature.

In the case of appeals from judgments of Magistrates’ Courts,
it has been held that security for the respondent’s costs of appeal
must be given within the prescribed period of twenty-one days
and that such security must be for the full amount. [See the
authorities cited on page 406 of Jones & Buckle’s “ Civil Practice
of the Magistrates’ Courts ” (Fifth Edition).] In my view that
position also obtains as regards appeals to this Court since, as
pointed out above, the object of the relevant Rules in both
Courts is substantially the same.

The security in question in the instant case, in the form
accepted by the Clerk of the Court a quo, was not lodged until
the 9th January, 1952, and then only in the sum of £5. It
follows that in terms of sub-rule 32 (2) of the new Rules of this
Court published under Government Notice No. 2887 of 1951,
those Rules apply in the present case, and that security should
have been given in the sum of £7. 10s. as required by sub-rule
5 (3) of those Rules.

On the application of Counsel for appellant, this matter was
adjourned until the next session of this Court at this centre
to enable him in the interim to take the necessary remedial
steps in the light of the foregoing comments.

Another matter in connection with the present case calls for
comment. The original and the copies of the record of proceed-
ings therein which is a short one, were received by this Court
four months after the relative notice of appeal had been delivered
to the Clerk of the Court a quo, and only a few days before the
date fixed for the hearing of this appeal. This prolonged delay
seriously impeded the necessary preparatory work by the members
of this Court in this case. An equally lengthy delay occurred
in the transmission of the record in an appeal from the judgment
of the same Court in another case which had also been set down
for hearing during this session at this centre. Obviously these
lapses could not be allowed to pass, and the Registrar has been
directed to transmit to the Secretary for Native Affairs a copy
of these comments.

Steenkamp (President): I concur.

De Vries (Member): I concur.

140 I

Robb'„s'''i§S'rt“: »' Clark *

For Re^ondent: Mr. L. H. Catterall of Messrs. Robinson &
Catterall, Durban.

NORTH EASTERN NATIVE DIVORCE COURT.

N.D.C. CASE No. 446/51.

NDIMANDE v. NDIMANDE.

Durban: 7th May, 1952. Before J. H. Steenkamp, Esq., President.

COMMON LAW.

Husband and wife — Divorce on ground of adui'ery — Allegation

that husband sterile when his wife conceived, not proved.

Summary: Plaintiff, the husband, sued his wife for divorce on
the grounds of adultery, alleging that he was sterile, beinv a
crypsorchid, and that although he had carnal intercourse
his wife at the time she conceived, he could not be the father
of the child born to her because of such alleged sterilit’’

Held: That as one case where spermatozoa was found in the
fluid emitted by a crypsorchid is known, such one affirmative-
instance is sufficient for all purposes of the law to overthrow
ninety-nine negative instances.

Held: Further that as a physiological fact, it is obvious that
the organs which have not descended are not always defective
in structure or function.

Held further: That as intercourse between husband and wife
at alt material times is admitted, and as there is no evidence
that plaintiff was sterile when his wife conceived, no adultery
has been proved, especially in view of defendant’s denial on
oath that she ever, during the subsistence of the marriage,
had intercourse with any other man.

Steenkamp (President): —

The plaintiff (husband) sues his wife (defendant) for divorce
on the grounds of adultery with some unknown person.

The defendant gave birth to a child on the 21st March, 1951,
of which plaintiff alleges he is not the father.

Intercourse at all appropriate times is admitted by plaintiff,
but he bases his action on the submission that he was sterile
and could not be the father of the child his wife bore.

He is supported by Dr. Samuel McMahon, an Urologist of
Durban.

Before dealing with the medical evidence it is necessary to
give a resume of plaintiff’s evidence, which is to the effect that
the defendant is his second wife — having married her on the
29th June. 1937. He divorced his first wife on the grounds of
adultery, but during the subsistence of that marriage she bore
him three children — the third being the adulterine child, which
gave rise to the divorce. He states that he accepted the position
that he was the father of the first two children, but he now
has his doubts in view of what the Doctor has told him. Plaintiff
also admits that during 1950, i.e. during the subsistence of the
present marriage, he paid £30 damages to the parents of a girl
he was accused of having rendered pregnant.

141

The medical evidence is to the effect that plaintiff first con-
sulted Dr. McMahon on the 3rd May, 1948, because he suffered
from undescended testicles on both sides (i.e. plaintiff was a
crypsorchid. After treatment, plaintiff was operated on to bring
the right testicle down to the scrotum. The operation was
partially successful. Later on, towards the end of the same year,
an operation was performed to deal with the left testicle.
Plaintiff was discharged from hospital about the end of January,
1949. It is to be noted that prior to these operations, or even
for a reasonable period thereafter, no examination of the sperma-
tic fluid was carried out.

Plaintiff consulted Dr. McMahon again on the 5th March,
1951, for the purpose of having his spermatozoa tested. It was
then found that he was sterile. It is on this evidence that plaintiff
relies that he could not have been the father of the child born
on the 21st March, 1951. He called a witness by the name of
Octavia Ndimande, who states that she saw defendant in the
company of a man by the name of James Ngcobo, but her
evidence is such that no reliance can be placed thereon.

It is true the Doctor’s evidence is that he is even prepared
to say that it was impossible for plaintiff to be the father of
the child. Later on he states : “ I think we can assume that he
(plaintiff) has always been sterile.” He also states : “ If a specimen
had been examined at the time he (plaintiff) was operated on,
then I think he would have been found to have no sperm.” Again
the Doctor states: “I could not answer the question that when
I brought the testicles down that plaintiff would immediately
become fertile, without the actual examination of the fluid at
any time.”

Reading into the evidence of the Doctor, I come to the con-
clusion that although, in his opinion, it was unlikely that plaintiff
had ever been fertile, it is not impossible.

I come to this conclusion not without authority, as according
to Taylor’s “ Principles and Practice of Medical Jurisprudence ”
Vol. II on page 287 et seq, in one case Casper found sperma-
tozoa in the fluid emitted by a crypsorchid. The authors further
state that one affirmative instance is sufficient for all the purposes
of the law to overthrow ninety-nine negative instances; and, as
a physiological fact, it is obvious that the organs which have
not descended are not always defective in structure or function.

There is no evidence that the operation performed on this
crypsorchid in any way brought about any sterility. There might
have been other causes of which there is no evidence that brought
about the sterility as found by the Doctor on the 5th March,
1951. This does not follow that plaintiff was sterile at the time
his wife, the defendant, conceived. Intercourse is admitted at
all material times.

I therefore conclude in holding that no adultery has been
proved, especially in view of defendant’s denial on oath that
she ever, during the subsistence of the marriage, had intercourse
with any other man.

Judgment is entered for defendant with costs.

For Plaintiff: Mr. Clark of Messrs. Clark & Robins, Durban.

For Defendant: Adv. R. W. Cowley, instructed by Messrs.
Cowley & Cowley, Durban.

142

SOUTHERN NATIVE APPEAL COURT.

N.A.C. CASE No. 19/52.

NOMPENXELA v. MANQOMNTU.

Port St. Johns: 26th May, 1952. Before Sleigh, President,
Wilbraham and Thorpe, Members of the Court.

NATIVE LAW AND CUSTOM.

Native Appeal Case — Native Custom — Nqoma cattle and increase
being claimed by heir — Heir — Liable for debts and obligations
of his father — Heir would be liable for shop debts if the
proprietor was a Native — Heir would be liable even if he
inherited nothing — Cattle — Value of not challenged.

Summary: Respondent is the son and heir of the late M
and appellant is heir of the late Mgqobozi. Many years ago
M Nqomaed two heifers to Mgqobozi. These increased and
It is common cause that when M died there were five in
Mgqobozi’s possession. After hearing evidence the Native
Commissioner gave judgment for respondent for delivery of
four cattle or payment of their value £10 each. Appellant
has appealed.

Held:

(1) That the Native Commissioner was correct in accepting

the evidence for respondent.

(2) That in Native Law a contractual obligation incurred

must be discharged if not by the debtor, then by his heir,
even if the heir derived no benefit from the estate.

(3) If contract was according to Common Law the heir

would be liable only to extent to which he has benefited
by the estate.

Cases referred to:

Ngqandulwana v. Gomba, 4, N.A.C. 132.

Letlotla V. Bolofo, 1947, N.A.C. (C. & O.), 16.

Umvovo V. Umvovo, heard at Kokstad on 11,2,52.
Magidela v. Siwintshi, 1943, N.A.C. (C. & O.), 52.

Appeal from the Court of Native Commissioner, Tabankulu.

Sleigh (President), delivering the judgment of the Court: —

This is an appeal against a judgment for plaintiff (now respon-
dent) for delivery of four cattle or payment of their value at £10
each.

Respondent is the son and heir of the late Manqomntu and
appellant is the heir of the late Mgqobozi. Many years ago
Manqomntu nqomaed two heifers to Mgqobozi. These increased
and it is common cause that when Manqomntu died there were
five in Mgqobozi’s possession.

Respondent’s mother states that after her husband’s death
(respondent then being a minor) she went with Mandimandeni to
see Mgqobozi who told them in the presence of appellant that
the cattle had increased to seven, but that one had been attached
and another had been paid as dowry for appellant’s wife. He
promised to replace these two cattle out of the dowry of his
daughter. Mandimandeni confirms this evidence. Appellant
denies all knowledge of this statement by Mgqobozi. He states
that the Nqoma cattle had increased to eight when Manqomntu
awarded Mgqobozi a red cow, and about three years later
awarded him a white cow. Thereafter one of the original cattle
died and its death was reported to Manqomntu, leaving five
cattle which came into his (appellant’s) possession after the death
of Mgqobozi.

143

Respondent states that after the death of Mgqobozi he
went to see appellant who told him that he had received five
cattle from Mgqobozi and that two had died in the latter’s
possession. In this Court it is contended that Mgqobozi could
not have made to the two women the report they mention
because respondent would have known of it and consequently
challenged appellant’s statement that the cattle had died and, as
he did not challenge it, the women’s evidence is false and should
be rejected. The evidence is, however, also capable of the
inference that respondent did know that appellant’s statement
was false and did not challenge it because, since Mgqobozi had
promised to replace the two cattle from his daughter’s dowry, it
made no difference whether the cattle had died or been disposed
of. In our opinion, the Assistant Native Commissioner has
rightly accepted the evidence of the two women in preference to
that of appellant, because the latter’s statement, to the effect that
there was no increase after the first award was made, is so
improbable that it must be false.

It is further contended that appellant would be liable as heir
for the debts of Mgqobozi only to the extent to which he has
benefited by the estate. If this contention is correct then
the judgment in respect of these two cattle should have been
one of absolution from the instance, since there is no evidence
that appellant inherited anything. The contention is, however,
entirely in conflict with the previous decisions of this Court. (See
Ngqandulwana v. Gomba, 4, N.A.C., 132; Letlotla v. Bolofo,
1947, N.A.C. (C. & O.), 16; and Umvovo v. Umvovo, heard at
Kokstad on 11th February, 1952, and not yet reported.] Counsel
for appellant, however, contends that the law among the Pondos
is different. At his request the question was referred to the
native assessors whose opinion is annexed. It will be seen that
the custom among the Pondos is the same as among the other
tribes. The assessors go so far as to say that the heir would
also be liable for shop debts if the proprietor was a native. That
undoubtedly is strict Native Law; when a contractual obligation
has been incurred it must be discharged, if not by the debtor
himself, then by his heirs, and thus even if the heir derived no
benefit out of his estate. But Native Law in this respect has
been modified by statute. If one of the litigants is a non-native,
the action is triable by the Magistrate’s Court which is precluded
from applying Native Law. If both parties are natives and they
contracted according to Common Law, and one of them became
liable under the contract, e.g. for payment of a debt due on a
promissory note or for goods supplied by a general dealer, then
the action must, in terms of section eleven (1) of Act No. 38 of
1927, be determined according to Roman-Dutch Law [see Magi-
dela V. Sawintshi, 1943, N.A.C. (C. & O.), 52], and in that case
the heir would be liable only to the extent to which he has
benefited by the estate. Where, however, the deceased had
incurred a contractual obligation under Native Law, as in the
present case, the heir would be liable even if he inherited nothing.
The contention advanced by counsel for appellant consequently
fails.

We now turn to the question of the remaining two cattle.
When Mgqobozi died respondent was a young man but not yet
married. He states that after Mgqobozi’s death he went with a
man, who has since died, to see appellant about the cattle, and
that the latter told him that there had been two increase but
that two of the cattle had died. On being questioned appellant
could not explain why he had not reported these deaths. Respon-
dent goes on to say that he then demanded that appellant replace
the cattle alleged to have died, and that the latter promised to do
so. Thereafter on his mother’s instructions he removed the five
cattle and on this occasion as well as on two subsequent occasions
he demanded these as well as the other two cattle, but was put
off on the pretext that a permit could not be obtained for the
removal of the cattle from the kraal where they were. On one
of these occasions respondent was accompanied by Nonqandana

144

who supports his evidence. Appellant denies that he informed
respondent that there had been two increase and two deaths. He
also denies that respondent demanded four cattle from him
although he admits that respondent complained to the headman.
He maintains that there were no increase or deaths and that he
accounted for all the cattle which came into his possession.

Unfortunately the record is silent as to the ages of the five
cattle which were removed. Respondent knew that there were
five cattle when his father died. If these were the cattle he
received from appellant they must have been old and respondent
would naturally have wanted to know where the increase were.
(There were three female cattle among the five.) On the other
hand if some of the cattle, judging from their apparent ages, were
born after Manqomntu’s death, respondent would require appel-
lant to account for the missing cattle. In either case respondent
would not have been satisfied that the five cattle produced were
all that he was entitled to. The Native Commissioner was there-
fore correct in accepting the evidence that appellant did sav that
there had been two increase and two deaths, and since the deaths
were not reported appellant is liable, in Native Law, to replace
them, as well as the two cattle used by Mgqobozi whose daughter
has since married.

One of the grounds of appeal is that there is insufficient proof
that the value of the four undescribed and unknown cattle is £10
each. The only evidence on this point is respondent’s statement
that he values the cattle at £10 each. This valuation was not
challenged either in the plea or during the hearing and, in any
case, since the judgment is in the alternative it is open to appellant
to pay cattle if he considers that the value is too high.

The appeal is dismissed with costs.

OPINION OF NATIVE ASSESSORS.

Names of Assessors: Mdabuka Mqikela (Lusikisiki), Nobulongwe

Masipula (Flagstaff), Lanyanzima Mvinjelwa (Port St. Johns),

Tolikana Mangala (Libode), Nombekile Libode (Ngqeleni).

Question: A man lends another cattle under Nqoma custom.
When he goes to inspect them he finds that two are missing and
is told that one was attached by the Messenger of the Court and
the other impounded for dowry by his daughter-in-law’s people
where it had been sent to be trained. He is promised by the
borrower that he will replace these cattle from the dowry of his
daughter but he dies before his daughter is married. Is his heir
liable to replace these two cattle?

Answer (per Tolikana): He is liable to replace those cattle.
Even if his father had not promised to replace them he must still
meet his father’s obligations.

(Per Mdakana): 1 support. The heir is liable to pay all his
father’s debts. Others agree.

Question: Assuming that a beast, lent to make up a span of
oxen, died and the borrower failed to report its death, must the
heir of the borrower replace it?

Answer (per Nombekile Libode): The heir must replace because
that is his father’s debt, especially as the death was not reported.

Others agree.

Question: If a native buys some sugar and a suit of clothes
from a native trader, pays for the sugar, but is still owing the
money for the clothes when he dies, is his heir liable for this
debt?

Answer (per Lanyanzima): Yes.

Question: Even if the heir inherited nothing?

Answer (per Lanyanzima): He must pay.

(Per Nobulongwe): 1 agree. It is right that he must pay the
native trader.

145

Others agree.

Question: In the circumstances of the first question, if both the
missing cattle had died and the heir had inherited nothing?

Answer (per Tolikana): The heir is obliged to pay because he is
bound by his father’s obligations even if he inherited nothing.
Others agree.

For Appellant: Mr. Birkett, Port St. Johns.

Respondent: In default.

SOUTHERN NATIVE APPEAL COURT.

N.A.C. CASE No. 20/52.

NONGQUNGQU v. MTUTI.

Port St. Johns: 26th May, 1952. Before Sleigh, President,
Wilbraham and Thorpe, Members of the Court.

NATIVE LAW AND CUSTOM.

J^ative Appeal Case — Dowry — Claimed by heir — Praa'ice and
Procedure — Court not prepared to take point mero moto.
Summary: It is common cause that the late N was related by
her father to M, the father of plaintiff; that N had a number
of children including a girl G; that G had a number of
children; that some of her girls have been given in marriage
and what remains of their dowries is in the possession of
G. It is alleged that neither N nor G ever married and that
plaintiff, as heir of M is entitled to the dowries of G’s
daughters. The defence is that N married Mabulula and G
married L, according to Native Custom and consequently
plaintiff had no right to the dowries of the girls; that both
Mabulula and L are dead and their heirs are Mbana and
Mpandla respectively. The Native Commissioner entered
judgment for plaintiff and appellant has appealed.

Held:

(1) That the Native Commissioner’s finding was correct.

(2) That neither N nor G ever married.

(3) That respondent is entitled to the dowry of G’s daughters.

(4) That both heirs were present at the trial and gave evidence

for G and could have intervened had they so desired.

Appeal from the Court of Native Commissioner, Ngqeleni.

Sleigh (President), delivering the judgment of the Court: —

It is common cause that the late Nozinjeyi was allotted by
her father to Mtuti, the father of plaintiff (now respondent); that
Nozinjeyi had a number of children including a girl, Gcude (now
appellant); that Gcude also had a number of children including
the girls Nontwanazana, Nomakenqe, Nondobayina, Nomadanga-
tya and Sigunza; and that some of the girls have been given in
marriage and what remains of their dowries is in the possession
of appellant.

It is alleged in the particulars of claim that neither Nozinjeyi
nor appellant ever married and that respondent, as the heir of
Mtuti, is therefore entitled to the dowries of appellant’s daughters.
He claims a declarafio.". of rights in respect of these daughters
and delivery of the dowry cattle in appellant’s possession or pay-
ment of their value.

The defence briefly is that Nozinjeyi married Mabulula, and
^appellant married Luwaka Kupiso, according to Native Custom,

146

and consequently respondent has no right to the dowries of the
girls, that both Mabulula and Luwaka are dead and their heirs
are Mbana and Mpandle Ngonjana respectively.

The Assistant Native Commissioner entered judgment for
plaintiff (respondent) and appellant has appealed on the ground
that the judgment is against the weight of evidence and the
probabilities..

At the hearing of the appeal Mr. Birkett, who appeared for
appellant, stated that he was unable to attack the judgment on
its merits. We agree that the evidence supports the Native Com-
missioner’s finding that neither Nozinjeyi nor Gcude ever married
and consequently respondent is entitled to the dowry of Gcude’s
daughters.

Mr. Birkett, however, raised the point that Gcude was in the
eyes of the law a minor and could not be sued unassisted
especially by her guardian. This point was not canvassed in the
Court below. It is a legal objection which should have been
taken in the Court below within the time prescribed by Rule 1 (1)
of Order Xll of Proclamation No. 145 of 1923 and as the
objection was not so taken it could not thereafter be raised
without leave of the Court [see Rule 1 (2)]. Mr. Birkett, however,
asked the Court to take this point mero moto.

Native Appeal Court Rule 22 provides that the appellant shall
be limited to the grounds stated in his notice of appeal. There
may be cases in which this Court, which is virtually the highest
Court open to native litigants, may, in order to avoid an
injustice, take of its own motion a point not raised in the notice
of appeal but this is not such a case.

It is alleged in the particulars of claim that appellant was
denying respondent’s legal rights to the dowries of the girls and
he had to sue her in order to obtain redress. He would have
been well advised as a preliminary step to apply to the Court
for the appointment of a curator ad li;em but no injustice has
resulted from his failure to do so as both the heirs (according
to her version), were present at the hearing of the case and gave
evidence for her and could have intervened had they so desired.

Mr. Crowther for respondent applied for the increase of the
fee for conducting the appeal on the ground that he was involved
in considerable work in preparing notes to meet the appellant’s
arguments on the merits of the case. The record is not unduly
long and no difficult legal issues are involved; moreover
Mr. Crowther was the attorney of record and should therefore
be familiar with all the facts of the case. The application is
therefore refused.

The appeal is dismissed with costs.

For Appellant; Mr. Birkett, Port St. Johns.

For Respondent: Mr. Crowther, Ngqeleni.

NORTH EASTERN NATIVE APPEAL COURT.

N.A.C. CASE No. 34/52.

DUBE V. DUBE.

Pretoria: 9th June, 1952. Before Steenkamp, President; Balk
and Smithers, Members of the Court.

COMMON LAW.

Practice and Procedure — A pplication for " Mandament van
Spolie " — Disposing of issue of fact on affidavits.

Summary: Plaintiff claimed to have been unlawfully and
forcibly ejected from premises by defendant, and defendant
filed affidavits alleging that plaintiff had in fact consented
to leave, whereupon the Court a quo disposed of the matter
on the affidavits, dismissing the application.

147

Held: That in a case of this nature the Court must examine
the alleged dispute of fact and see whether in truth there is
a real issue of fact which cannot be satisfactorily determined
without the aid of oral evidence.

Held further: That as the weight of evidence on the dispute of
fact in this case is in favour of the respondent, the Native
Commissioner was correct in disposing of the matter as he
did.

Cases referred to:

Peterson v. Cuthbert & Co., Ltd., 1945, A.D., 219.

Hilleke v. Levy, 1946, A.D., 214.

Nienaber v. Stuckey, 1946, A.D., 1049.

Appeal from the Court of the Native Commissioner, Volksrust.

Balk (Permanent Member): Dissentiente ; —

Just cause having been shown, the late noting of the appeal is
condoned.

Application was made in the Court of the Native Commissioner
at Volksrust for a “ mandament van spolie ” in respect of certain
property situate in the Volksrust Municipal Location (hereinafter
referred to as “ the property ”), the applicant (present appellant)
averring in his supporting affidavit that he had been in peaceful
and undisturbed possession of the property on the 5th February,
1952, when the respondent had wrongfully, unlawfully and
forcibly ejected him therefrom.

An interim order for the restoration of possession of the property
to the applicant and a rule nisi calling upon the respondent to
show cause on the 28th March, 1952, why that order should not
be made final were granted by that Court on the 13th idem.

The respondent filed a replying affidavit in which he denied
that the applicant had been in peaceful and undisturbed possession
of the property. He also denied therein that he had wrongfully,
unlawfuly or forcibly ejected the applicant from the property
and averred that the applicant had consented to vacate it. The
respondent filed other affidavits in support of his contention.

On the return day which was anticipated by the respondent
after due notice, the matter came before the Court a quo on
the affidavits and that Court, after hearing argument by the
respondent’s attorney and the applicant’s reply to its enquiry
whether he wished to address it, discharged the interim order
on the 24th March, 1952.

It seems to me on examination of the alleged dispute of fact
in this case that there is in truth a real issue of fact which
cannot be satisfactorily determined without the aid of oral evi-
dence, viz., the issue whether or not the applicant finally con-
sented to vacate the property; that being so, the Court a quo
should have intimated that it could not reach a decision on
the affidavits and that evidence was to be led for the proper
determination of the matter, see Hilleke v. Levy, 1946, A.D., 214.

I am therefore of opinion that the appeal should succeed and
regret that I am unable to concur in the learned President’s
judgment.

Steenkamp (President): —

I have read my brother Balk’s judgment and agree that the
late noting of the appeal should be condoned. There are two
aspects of the case which militate against the appellant, viz.,
firstly the fact that applicant (now appellant) has waited about
five weeks after the alleged eviction before applying for a
“ mandament of spolie ” and secondly that applicant has not
filed any replying affidavits.

148

On the first question I have consulted the case of Nienaber v.
Stuckey, 1946, A.D., 1049, in which the question of delay in
applying for relief was discussed. In that case the applicant did
not act promptly. There was a delay from the 17th September
to the 11th January, i.e., nearly tour months. The learned
Judge of Appeal remarked as follows; —

“ But whatever the cause of the delay, there is no warrant
for holding that the appellant (applicant) thereby lost his
remedy. On the contrary, the last passage cited from Wasse-
naer (Ch. 13, Art. 1) makes the remedy available for a year
[see also Voet (43.16.6 and 7)]. It is true that Savigny on
“ Possession ” (pp. 406 et seq.) describes this remedy as
possessoriuni siimmariissimum, but I think the adjectival
qualification refers not to the period within which the remedy
must be claimed, but to the procedure of the Court in deal-
ing with the application. 1 express no opinion on the question
whether the Court has a discretion to refuse an application
where, on account of the delay in bringing it, no relief of
any value can be granted.”

This passage, quoted from the judgment of Greenberg (J.A.),
does not peremptorily lay down that delay does not prejudice
applicant’s application for a spoliatory order, and 1 think the
surrounding circumstances of the matter must be considered in
the light of any apparent probability that the applicant might
have acquiesced in the action taken by respondent, and 1 think
this is where the time factor plays a prominent part. One would
expect a person who has been evicted from a house to take imme-
diate steps to have himself re-instated and not to wait from
the 5th February, 1952, to the 13th March, 1952. His failure
to take immediate steps in such an important matter certainly
prejudices his claim in a spoliatory application. By this 1 do
not mean that an action must be instituted immediately and as
stated by the Native Commissioner in his reasons for judgment
when he discharged the interim order, applicant is not without
the remedy of an action.

It is observed that certain allegations are made in the affidavit
by respondent and in the affidavits made on his behalf by other
persons, and if the contents of these affidavits are the truth,
then the applicant cannot succeed in his application. He has
not denied these allegations. There is only one affidavit by the
applicant and that is the one in support of his application for
an interim order. That affidavit is in general terms. The affida-
vits made on behalf of respondent give specific details and one
would expect applicant to deny these categorically.

The applicant was not represented, however, and I realise that
the failure to file a replying affidavit should not be held to be
fatal to his case. As already stated, there is evidence that he
recognised by implication the right of the respondent to the
premises, and in these circumstances it is only necessary to decide
if the issue could be decided without viva voce evidence. It is
clear from the judgment in the case of Hilleke v. Levy, 1946,
A.D., at page 219, quoting Peterson v. Cuthbert & Company,
Limited (1945, A.D., 420), that “in every case the Court must
examine the alleged dispute of fact and see whether in truth
there is a real issue of fact which cannot be satisfactorily deter-
mined without the aid of oral evidence I am satisfied that
the weight of evidence on the dispute of fact in this case is in
favour of the respondent, and the Native Commissioner was
correct in disposing of the matter as he did.

The appeal is therefore dismissed with costs.

Smithers (Member): I concur in the judgment of the learned
President.

For Appellant; Mr. Michel of Messrs. Helman & Michel,
Johannesburg.

For Respondent : Adv. C. J. Mouton, instructed by Messrs. Kuit
& Mortimer, Volksrust.

149

SOUTHERN NATIVE APPEAL COURT.

N.A.C. CASE. No. 21/52.

NYANDA V. KOHLISO.

Kokstad: 9th June, 1952. Before Sleigh, President, Wilkins and
van Aswegen, Members of the Court.

NATIVE LAW AND CUSTOM.

Native Appeal Case — Heir — Presumptive heir according to Native
Custom — Native Custom — “Custodian" or “keeper” has no
authority to sue on behalf or in name of absconding owner
of kraal — Presumptive heir’s duty to take action for preser-
vation of absconder’s property.

Summary: V, the alleged brother and heir of plaintiff sued defen-
dant for delivery of 6 cattle or their value £60 being the
value of 6 cattle sold by defendant. It is clear the plaintiff
is an absconder and that V is his presumptive heir according
to Native Custom; that when plaintiff left for Johannesburg
19 years ago he left 11 cattle with one Mkwayi for safe
keeping. Shortly thereafter, defendant falsely represented
to Mkwayi that he received a letter from plaintiff instructing
him to obtain possession of the cattle. The cattle were
handed over and the defendant has since sold 6 and has
appropriated the proceeds for his own use.

Held:

(1) That a “custodian” or “keeper” has no authority to

sue on behalf or in the name of an absconding owner
of a kraal.

(2) That the presumptive heir’s duty is to take action for the

preservation of absconder’s property.

(3) That if the owner is an absconder his heir has a right

in Native law to represent him in any dispute con-
cerning property.

(4) That judgment of absolution cannot be granted at this

stage.

Cases referred to:

Mdontsa v. Fumbalele, 1946, N.A.C. (C. & O.), 68.

Ketabahle v. Mpamba, 1937, N.A.C. (C. & O.), 193.

Qolo V. Ntshini, 1 N.A.C. (S), 234.

Bower v. Divisional Council of Albany, 7 E.D.C. 211.
Geldenhuys v. Keller, 1912, C.P.D., 623.

Appeal from the Court of Native Commissioner, Maclear.
Sleigh (President) delivering the judgment of the Court; —
Valiko Nyanda, the alleged brother and heir of the plaintiff,
sued defendant for delivery of 6 cattle or payment of the sum
of £60 being the value of 6 cattle sold by defendant. In the
particulars of claim it is alleged that the plaintiff left for work
on the mines in Johannesburg about 19 years ago and has not
been heard of since; that when he departed for Johannesburg
he left certain cattle, his property, with one Mkwayi, to look
after for him; that shortly thereafter defendant falsely repre-
sented to Mkwayi that he had received a letter from the plaintiff
instructing him to obtain possession of the cattle from Mkwayi
and thus induced the latter to hand over to him 1 1 head of
mixed cattle: that defendant has since sold 6 of the cattle and
has appropriated the proceeds to his own use; that there are
still 6 cattle belonging to the plaintiff in defendant’s possession;
that the average value of cattle in the district where the parties
reside is £10 per head; and that in view of defendant’s dishonest

150

dealings with plaintiff’s property he is not a fit and jwoper person
to have or continue to have possession of the plaintiff’s property.

Apart from admitting that the plaintiff went to work in
Johannesburg and that the average value of cattle is £10, the
plea amounts to a bare denial of the allegations in the summons.

It is clear froon the evidence that the plaintiff is an absconder
and that Valiko is his presumptive heir according to Native
Custom; and the uncontraverted evidence is that when the plain-
tiff left for Johannesburg he left 11 cattle with Mkwayi, being
6 cattle paid by Noveldt as dowry for plaintiff’s sister and 5 other
cattle he inherited, that defendant obtained possession of these
cattle and sold 6 and that there are still 6 cattle in his possession.

During the course of his evidence Valiko stated that plaintiff
stayed with defendant before he left for the mines and that he
appointed defendant as his representative to look after his
interests while he was away. In view of this evidence, defendant’s
attorney applied, at the close of plaintiff’s case, for absolution
judgment. This was granted, the Native Commissioner holding
that Valiko had failed to establish his right to represent the
plaintiff, especially in view of his admission that plaintiff had
appointed defendant as his representative. The Native Commis-
sioner referred to Madontsa v. Fumbalele, 1946 [N.A.C. (C. & O.),
68], and held in effect that the principles enunciated in that case
do not apply in the present case.

Valiko now appeals. The ground of appeal briefly is that the
Native Commissioner erred in ruling that the conditions laid down
in Mdontsa's case do not apply when the absconder has himself
appointed a representative.

In support of his judgment that Native Commissioner quoted
the following passage from the judgment in Madontsa’s case,
viz: —

“ Secondly the right to sue will be confined to the person
who in Native Law has the right to the control of the
property, that is, the absentee’s representative according to
Native Law and, if the representative is himself an absconder,
then the next person in line of succession and so on . . .
It is inadvisable to concede the right to other members of
the family, if the legal representative is available.”

In that case one of the native assessors stated: “If the elder
brother does not take action, a younger brother can claim the
property in opposition to the elder brother.” This Court
considered that if the elder brother (the heir) was available, it
would be inadvisable to comcede a right of action to the younger
brother. The Court was there referring not to the appointed
representative, i.e. the eye, custodian or keeper of the kraal, but
to the legal representative according to native custom.

The “ custodian ” or “ keeper ” of a kraal has certain rights and
obligations [see Ketabahle v. Mpamba, 1937, N.A.C. (C. & O.),
193, and Qolo v. Ntshini, 1 N.A.C. (S) 234], but nowhere, as
far as 1 am aware, has this Court ruled that he has authority
to sue on behalf of or in the name of the absconding owner of
the kraal. Unless he is the heir, his authority is limited to the
supervision of the affairs of the owner and it is his duty to
resist outside illegal interferance with the owner’s property. If
there is such interferance native custom probably expects him to
report to the owner, or the senior member of the owner’s family,
for such action as the occasion may require. In Ketabahle’s case
(supra at p. 196) the native assessors expressed the opinion
that a “ keeper ” would not be liable to replace any stock
disposed of for the benefit of the kraal. But defendant is not the
“ keeper ” of the kraal of plaintiff, since the latter had no kraal
of his own. If it is correct that defendant was authorised to
obtain possession of the cattle for safekeeping he is in the
position of a bailee and can resist by legal action outside inter-
ference (see Bower v. Divisional Council of Albany, 7 E.D.C.
211 and Geldenhuys v. Keller, 1912, C.P.D. 623). But what is
the position if he himself has abused his trust and the owner
is an absconder? In that case it is not only the right of the

151

presumptive heir of the absconder but his duty to take action
for the preservation of the absconder’s property. The dispute is
then not between the bailee and a third person but between the
bailee and the owner. If the latter is an absconder his heir has
the right in native law to represent him in this dispute. The
Native Commissioner consequently erred in holding that Valiko
has failed to establish his right to represent the plaintiff.

But in this Court it is contended that in any event there is
no evidence that defendant’s dealings with the cattle was
fraudulent and that in the absence of such evidence this Court
should confirm the judgment of absolution. There is uncontra-
dicted evidence that defendant disposed of six head of cattle
without consulting Valiko as the presumptive heir, as he should
have done in accordance with Native Custom. Further, there is
the evidence that the eleven cattle which came into defendant’s
possession abo'ut 19 years ago have increased to only twelve.
There may be an explanation for this, but it can come from the
defendant only, and in the absence of such explanation the
probability is that he has appropriated the normal increase which
could have been expected. Valiko has thus made out a prima
facie case and consequently judgment of absolution on this
point cannot be granted at this stage of the action.

The appeal is allowed with costs, the judgment of the Court
below is set aside and the record is returned to that Court for
further hearing.

For Appellant: Mr. W. Zietsman, Kokstad.

For Respondent : Mr. Elliott, Kokstad.

SOUTHERN NATIVE APPEAL COURT.

N.A.C. CASE No. 22/52.

UMVOVO V. UMVOVO.

Kokstad: 9th June, 1952. Before Sleigh, President, Cockcroft
and Wilkins, Members of the Court.

LAW OF PROCEDURE.

Native Appeal Case — Appeal — Leave ^o appeal to Appellate
Division granted — Practice and Procedure — Native Commis-
sioner’s decision on the exception cannot be challenged success-
fully— Whether the Native Commissioner exercised a proper
discretion in deciding the case according to Native Law —
Native Custom — Heir liable for obligations of his father —
Costs to abide the final determination of the case — Consent for
leave to appeal to the Appellate Division of the Supreme Court.
Held:

(1) That Native Commissioner’s decision as well as this
Court’s decision on the exception cannot be challenged
successfully.

(2) That an heir in Native Law is liable for his father’s

obligations.

(3) That point to be taken on appeal is whether the Native

Commissioner exercised a proper discretion in deciding
the case according to Native Law.

Application succeeds.

Cases referred to:

Umvovo V. Umvovo, 1, N.A.C. (S), 97 and 190.

Ngqandulwana v. Gomba, 4, N.A.C., 132.

Dlumti V. Sikade, 1947, N.A.C. (C. & O.), 47.

Nompenxela v. Manqomntu, heard at Port St. Johns on 26th
May, 1952.

152

Application for consent to apply for leave to appeal to Appel-
late Division on a judgment of the Southern Native Appeal Court
dismissing an appeal from the Court of Native Commissioner,
Umzimkulu.

Sleigh (President), delivering the judgment of the Court: —

On 11th February, 1952, this Court dismissed an appeal
brought by present applicant against a judgment in favour of
present respondent for the sum of £40 and costs. The consent of
this Court is now sought, in terms of section eighteen (1) of Act
No. 38 of 1927, to an application being made to the Appellate
Division of the Supreme Court for leave to appeal.

The points which applicant desires to take on appeal are as
follows: —

1. That the judgment of the Native Commissioner’s Court at

Umzimkulu, as confirmed by this Honourable Court on
appeal, in dismissing the defendant’s exception to the
summons as disclosing no cause of action, was wrong in
Law for the reasons: —

(a) That prior to the annexation of the Transkei and East

Griqualand in terms of Act No. 38 of 1877 (Cape) and
Proclamation No. 110 of 1879, private individual
ownership of land was unknown to Native Custom and
it was neither alleged in plaintiff’s claim nor proved by
any evidence that any Native Custom in any way
affecting such ownership has now become grafted on
to Native Law or Custom;

(b) That the registered rights of ownership of the defen-

dant and his father before him in the farm Roodeval
in the Umzimkulu district (which district falls within
the Annexed Territories above referred to) were
acquired by defendant and his father respectively,
entirely by operation of Common Law wherefore any
agreements affecting such ownership fall to be inter-
preted entirely by Common Law principles;

should have been upheld.

2. That after dismissing the aforesaid Exception the decision

of the said Native Commissioner’s Court to apply Native
Law and Custom to the trial of the action was wrong in
Law and wrongly confirmed on appeal by this Honourable
Court.

3. That under Common Law or even under any alleged Native

Custom the defendant’s action in ejecting plaintiff from the
farm Roodeval by process of Law issued in pursuance
of a judgment of a competent Court cannot and did not
give rise to any claim for damages and the decision of the
aforesaid Native Commissioner's Court and this Honour-
able Court in awarding any damages and costs to plaintiff
is wrong in Law.

4. That defendant’s sixth ground of appeal as from the Native

Commissioner’s Court to this Honourable Court raising
the plea of res judicata under Common Law in so far as
any claim for damages is concerned, should have been
upheld.

At the hearing of the application Mr. Zietsman, who appeared
for applicant, requested the Court to add a fifth point, namely,
that the finding in regard to the payment of rent is against the
weight of the evidence. This point is not arguable since the
evidence as to the payment of rent is largely hearsay.

By consent it is recorded that the parties in this case are the
same as those in the cases Umvovo v. Umvovo reported in 1
N.A.C. (S.) at pages 97 and 190.

The original exception to the summons as disclosing no cause
of action attacks the summons on the ground that applicant is

153

not liable for any loss which respondent may have suffered as
the result of the exercise by applicant of his lawful rights. This
is a good defence under Roman Dutch Law for, generally speak-
ing, the exercise of a lawful act resulting in loss to another does
not give rise to a claim for damages. The same principle applies
in Native Law, but when the action is based on contract and one
party has fulfilled his part of the contract and the other party
has died before fulfilling his part, then his heir is obliged under
Native Law to honour the agreement. If it is not possible for
the heir to do so or if he repudiates the contract, he is bound
to make restitution, if not of the original thing given then in
kind \vide Ngqandulwana v. Gomba, 4, N.A.C., 132; Dlumti v.
Sikade, 1947, N.A.C. (C. & O.), 47; assessors’ opinions in the
present case; and Nompenxela v. Manqomntu, heard at Port St.
Johns on 26th May, 1952, not yet reported].

The Native Commissioner in deciding the question whether
the summons disclosed a cause of action had to confine himself
to the allegations in the particulars of claim. Pleadings in Native
Commissioner’s Courts are not generally drawn with that precision
that one expects to find in a Supreme Court, but the summons
does, in effect, allege that in consideration of certain assistance
given by respondent to applicant’s father, Maqayekana, the latter
promised that respondent could reside on the farm until his death;
that applicant as heir of Maqayekana is liable, in Native Law,
for the latter’s debts and obligations (see paragraph 12); that
instead of honouring the agreement entered into with Maqaye-
kana, as applicant was bound to do under Native Law, he ejected
respondent from the farm (see paragraph 10 read with paragraph
12); and that as a result of this ejectment respondent has suffered
loss (paragraph 14). Here then is a complete cause of action.

It is, however, alleged in paragraph 1 (b) of the present appli-
cation that since applicant’s rights of ownership in the farm were
acquired by operation of Common Law, any agreement affecting
such ownership falls to be interpreted entirely by Common Law
principles. This is a point which was not relied upon in the
exception. The submission overlooks the possibility of agree-
ments among residents of communally occupied land in regard to
the reservation, cutting and division of thatch grass, the location,
digging and use of mealie pits, and agreements in regard to
buqisa (i.e. the right of a resident of communally occupied land
to graze his stock on the reaped lands of other residents).
These agreements are governed by principles recognised by
Native Custom. The submission also violates the elementary rule
relating to the interpretation of contracts, namely, to ascertain
and give effect to the intention of the parties. Since the agree-
ment between Maqayekana and respondent was verbal, it was
necessary to hear evidence of the surrounding circumstances in
order to obtain a true picture of the nature of the contract
and of what the parties contemplated. If, therefore, the submis-
sion is correct, the Native Commissioner would have to rely on
evidence to ascertain whether the summons disclosed a cause of
action. This he is not permitted to do.

Paragraph 1 (a) of the application was also not relied on in the
exception. Here too evidence would be necessary and, in any
event, it was not respondent’s case that the principles of private
individual ownership have become grafted on to Native Law. His
case is that the farm was communally occupied from the start,
and that the principles governing communal occupation apply.

In our opinion the Native Commissioner’s and this Court’s
decision on the exception cannot be challenged successfully.
We consequently refuse our consent to the exception being argued
on appeal, especially as the points relied on can be taken under
paragraph 2 of the present application.

Paragraph 2 goes to the root of this case. The action was
brought under Native Law and applicant’s case was based on
Roman-Dutch Law. In terms of section eleven (1) of Act No. 38
of 1927, the Native Commissioner had a judicial discretion to
decide the case according to the principles of Roman-Dutch Law

154

or Native Law. He applied the latter system. The sole question
is whether he exercised a proper discretion. If not, then the
plea of res judicata must prevail and the judgment should have
been one for defendant (the present applicant). We, therefore,
consent to the following point being taken on appeal: —

“ Whether, having regard to all the circumstances of the
case, the Assistant Native Commissioner exercised a proper
discretion, in terms of section eleven (1) of Act No. 38 of
1927, in deciding the case according to Native Law.”

By consent the costs of this application are to abide the final
determination of the case.

NORTH EASTERN NATIVE APPEAL COURT.

N.A.C. CASE No. 115/51.

BALOOI V. BALOOI.

Pretoria: 10th June, 1952. Before Steenkamp, President, Balk
and Smithers, Members of the Court.

NATIVE CUSTOM.

Practice and Procedure — Appeal a'.ruck off the roll — Application
for re-instatement — Penalising client for Attorney’s negligence.
Vindicatory action — Summons containing claim for alternative
value of cattle — Action accordingly no! spoliatory but vindi-
catory— Action to be taken by owner.

Summary: Plaintiff, a widow, sued defendant for the return of
cattle, or their value, which she alleged defendant removed
from her possession. She was assisted in the action by her
late husband’s brother and heir.

Held: That this was not a case where the client should suffer
for his Attorney’s negligence to the extent of being denied
access to his Court of Appeal and that the application for
re-instatement on the roll should be granted.

Held further: That as an alternative value was claimed in the
summons the action was vindicatory and not spoliatory and
accordingly vindicatory action for the recovery of the cattle
could only be maintained by the actual owner, not by the
plaintiff, who merely held the cattle temporarily on behalf
of such owner.

Cases referred to:

Rose & Ano. v. Alpha Secretaries, Ltd., 1947 (4), S.A., 511
(A.D.).

Groenewald v. van der Merwe, 1917, A.D., 233.

Xulu V. Xulu, 1936, N.A.C. (T. & N.), 38.

Mbata v. Ntuli, 1938, NA.C. (T. & N.), 187.

Martheze v. Rescue Works Committee of the D.R.C., 1927,
C.P.D., 23.

Johnson v. McDonald & Ors., 1941, C.P.D., 235.

Appeal from the Court of the Native Commissioner, Pietersburg.

Balk (Permanent Member): —

This is an application for the re-instatement on the roll of
an appeal which was struck off therefrom for want of prosecu-
tion.

The appeal was noted timeously and it is clear from the aflBdavit
filed in support of the application that the applicant intended

155

that the appeal should be prosecuted and was in no way to
blame for this not having been done; he left this matter in
the hands of his Attorney who, in the aflSdavit referred to above,
explains that the prosecution of the appeal escaped his notice
owing to the moving of his practice, involving the transfer of
an accumulation of files to another office.

It seems to me therefore that this is no more a case in which
the client should suffer for his Attorney’s negligence to the extent
of being denied access to his Court of Appeal than was Rose and
Another v. Alpha Secretaries, Ltd., 1947 (4) 511 (A.D.), see in
particular the antepenultimate paragraph on page 519 of the
report of the judgment in that case.

The application was accordingly granted.

The plaintiff (present appellant), duly assisted by Matseka
Balooi who, according to the evidence, is her late husband’s
eldest brother and as such her guardian, brought an action in
the Native Commissioner’s Court at Pietersburg iagainst the
defendant (present respondent) for the recovery of certain six
head of cattle or alternatively their value £75, averring in her
particulars of claim that —

“ (1) plaintiff is Shalati Balooi, the widow of the late Jack
Balooi and is herein assisted as far as need be by
Matseka Balooi, a brother of her late husband;

(2) defendant is Stephen Balooi also a brother of the late

Jack Balooi;

(3) early in March, 1951, there were six (6) head of cattle

in the lawful possession of the plaintiff, which cattle
were then taken away from plaintiff’s possession by the
defendant without plaintiff’s permission or consent;

(4) notwithstanding legal demand defendant refuses or neg-

lects to return the said six head of cattle to the plaintiff.”

The defendant in his plea admitted that he had removed the
six head of cattle concerned from the plaintiff’s place of residence
but denied all the other allegations contained in paragraph 3 of
the particulars of claim; alternatively he pleaded that he was
the owner of those cattle and therefore entitled to remove them.
He also preferred the following counterclaim: —

“ Defendant (now plaintiff in reconvention) claims against
plaintiff (now defendant in reconvention) as follows: —

1. During the lifetime of plaintiff’s husband Jack Balooi,

defendant lent to the said deceased four head of
cattle and the sum of £5, at the said Jack Balooi’s
special instance and request.

2. The said four head of cattle and £5 were required

by the said Jack Balooi to pay lobola for his son’s
wife, Raisebe.

3. The said Raisebe subsequently deserted Jack Balooi’s

son and the said Jack Balooi thereupon reclaimed the
cattle.

4. Notwithstanding numerous requests for the return of

the said four head of cattle, the £5 and one progeny,
the said late Jack Balooi refused or neglected to comply
with defendant’s request.

5. Before the action could be taken for the return of the

loan, the said Jack Balooi died.

6. Defendant then demanded the return of the loan from

the plaintiff. Plaintiff refused to hand the cattle back.

7. Whereupon defendant drove six head of cattle to his

own kraal. The six head of cattle comprises four
head of cattle originally loaned to plaintiff’s husband,
1 beast in lieu of payment of £5, one progeny;
wherefore defendant claims that he is the owner of the
said six head of cattle.”

156

After the plaintilT had closed her case, the presiding Assistant
Native Commissioner in the Court a quo, on the application of
the defendant’s Attorney, dismissed the summons with costs and
thereupon also dismissed the counterclaim with no order as to
costs.

The appeal against this judgment is brought on the following
grounds; —

“ (1) That the judgment is bad in law in that the Court should
have found that the action is one of spoliation and not
a vindicatory action.

(2) That the finding of the Court was bad under Native Law

and Custom in that the Court should have found that
the plaintiff (assisted by her guardian) has the necessary
locus standi in the absence of a male heir to the lapa
to prosecute the action whether one of spoliation or
vindicatory.

(3) That the decision of the Court in stating that the counter-

claim falls away is bad in law in that the defendant in
his counterclaim avers that he lent cattle to plaintiff’s
late husband to enable the latter to pay dowry for a
wife and thus even if defendant’s contention is
established it could not have been contemplated that the
same cattle would be returned to him as they would
have been handed over to the father of the second wife.
As defendant (plaintiff in reconvention) would have lost
ownership in them he cannot now ask for a declaration
of rights in them and the Court should have given
judgment for the plaintiff (defendant in reconvention)
on the counterclaim.”

The claim in the instant case was not confined to the recovery
of the cattle in question inasmuch as the summons also contained
a claim in the alternative for their value so that the action is
a vindicatory and not a spoliatory one, see “ The Civil Practice
of the Magistrates’ Courts in South Africa ” by Jones & Buckle
(Fifth Edition) at page 55 and the authorities there cited.

It emerges from the evidence that the cattle concerned were
the property of the plaintiffs late husband (hereinafter referred
to as “ the deceased ”) and that the latter’s eldest brother, Matseka
Balooi, who assisted her in this action, is the deceased’s heir;
further that the plaintiff held those cattle temporarily on
Matseka’s behalf so that the question of juristic possession does
not arise, see Groenewald v. van der Merwe, 1917, A.D., 233.

It is not altogether clear from the evidence whether or not the
cattle in question accrued to the plaintiff’s house and thus consti-
tuted house property; but this aspect is immaterial in the present
instance since, according to the evidence, the deceased died leaving
no male descendants and those cattle thereupon, in either event,
formed kraal property and, as is also manifest from the evidence,
devolved under the relevant system of Native Law on the
deceased’s eldest brother, Matseka. That being so, Matseka was
the owner of those cattle when the defendant removed them
and therefore only he could maintain a vindicatory action for
their recovery, the plaintiff having no locus standi to do so, see
Xulu V. Xulu, 1936, N.A.C. (T. & N.), 38, Mbata v. Ntuli, 1938,
N A.C. (T. & N.) 187, Martheze v. Rescue Works Committee of
Dutch Reformed Church, 1927, C.P.D. 23, and Johnson v.
Macdonald & Others, 1941, C.P.D. , 235.

It is also obvious that in the circumstances of this case the
counterclaim preferred by the defendant did not disclose a cause
of action as against the plaintiff, see Xulu’s and Mbata’s cases
(supra), and Counsel for appellant did not, in fact, press the
third ground of appeal.

I am therefore of opinion that no good grounds have been
advanced for disturbing the well-reasoned judgment of the

157

Assistant Native Commissioner concerned and that the appeal
should accordingly be dismissed with costs.

Steenkamp (President), I concur.

Smithers (Member): I concur.

For Appellant: Mr. A. Jones of Messrs. Lunnon & Tindall,
Pretoria.

Respondent in default.

SOUTHERN NATIVE DIVORCE COURT.

N.D.C. CASE No. 23/52.

SIHIYA V. SmiYA.

Kokstad: 11th June, 1952. Before Sleigh, President.

COMMON LAW.

Native Divora Case — Marriage by Christian Rites — Bigamous

marriage — Marriage declared null and void ab initio — Child —

Illegitimate child is not legitimated by a putative marriage of

parents — Claim for Maintenance refused.

Summary: Plaintiff sued defendant for restitution of conjugal
rights. Defendant counterclaimed for (1) an order declaring
the marriage null and void; (2) an order declaring her child,
Titus to be legitimate; (3) custody of the child; (4) main-
tenance for the child; and (5) costs of suit.

At the hearing the claim in convention was abandoned.

Held:

(1) That the marriage is declared null and void ab initio.

(2) That an illegitimate child is not legitimated by a putative

marriage of the parents.

(3) That the claim for maintenance is refused at present.

(4) That the custody of the child is awarded to plaintiff in

reconvention.

(5) That defendant in reconvention pay the costs of this

action.

Cases referred to:

Bam V. Bhaba, 1947, (4) S.A. (A.D.), 804.

Potgieter v. Bellingan, 1940, E.D.L., 264.

Exparte Soobiah & Ors. in re Estate Pillay, 1948, (1) S.A.

(N), 882.

H V. C, 1929, T.P.D., 992.

Lionel v. Hepworih, 1933, C.P.D., 481.

Exparte J„ 1951, (1) S.A. (O). 665.

Native Divorce Court Case.

Sleigh (President): —

Plaintiff, alleging malicious desertion, sued defendant for
restitution of conjugal rights failing which a decree of divorce.
Defendant alleged that when plaintiff married her he was the
lawful husband of Elizabeth Sihiya (born Lindi). She counter-
claimed for (1) an order declaring the bigamous marriage between
plaintiff and herself null and void; (2) an order declaring her
child, Titus Dalewonga, to be legitimate; (3) the custody of the
child; (4) maintenance for the child at the rate of 10s. per
month; and (5) costs of suit.

At the hearing of the case the claim in convention was
abandoned and the trial was thus confined to the claim in
reconvention.

7011-2

158

The facts of the case are not in dispute. On 28th April, 1941,
defendant in reconvention (herein referred to as plaintiff) married
Elizabeth Lindi according to Christian Rites, community of
property being excluded. During the same year he seduced
plaintilT in reconvention (herein referred to as defendant), and
rendered her pregnant. As a result she gave birth to the child
Titus in June, 1942. On 7th December, 1943, he married her in
the .Magistrate’s Court, Kokstad, Elizabeth then being still alive.
Although defendant knew that Elizabeth had been living with
plaintiff, she was not aware that he was married to her.
Elizabeth worked at Franklin and disappeared in 1943 or 1944.
It is not known whether she is still alive. Some time after the
marriage defendant left the plaintiff and he then married another
woman according to Native Custom. This woman bore him
four children.

On this evidence defendant is clearly entitled to judgment in
terms of prayers (1), (3) and (5).

In regard to the claim for maintenance, it appears that plaintiff
has no property except a hoarse. He is employed as a shop
assistant at €2. 10s. per month. Defendant is employed at an
hotel at £1. 10s. per month. As plaintiff has to support his
children by his customary wife, he is hardly in a position to
contribute towards the support of the child Titus. On the other
hand defendant is not without means. The claim for maintenance
must, therefore, be refused for the present.

In regard to the claim for an order declaring the boy Titus
to be legitimate reliance is placed on Maasdorp's Institutes (Vol.

I, 7th Ed., p. 8) where it is stated as follows: —

“ In the case of a bigamous marriage, where both parties
contracted in good faith, the children are legitimate. If only
one of the parties acted bona fide the children are
illegitimate.”

This statement of the law is not supported by the authorities
which 1 have been able to consult.

In Bam r. Bhabha [1947. (4) S.A. (A.D.) at page 804] Centlivres,

J. A. fas he then was) says: —

“The Roman-Dutch authorities, which state that the
children of a putative marriage are legitimate, refer to those
cases where a marriage is solemnised in proper form but the
marriage itself is null and void because, e.g. one of the
parties was at the time already married to someone else.
If in such a case one or both of the parties entered into the
marriage ceremony in bona fide ignorance of the already
existing marriage, the children of the bigamous marriage
were regarded as legitimate.”

In Potgieter i'. Bellingan (1940. E.D.L.. 264). Gane. J. quotes
Pothier as follows: —

“ When only one of the parties has in good faith been
ignorant of the invalidating impediment rendering null the
marriage which she contracted with another party, her good
faith suffices to give this marriage, though null, the usual
civil effects in respect of the children born therefrom, an i
to bestow upon them the rights of legitimate children."

Further, the learned Judge quotes van der Keessel as saying: —

“ Even if the second spouse alone has acted bona fide,
having been deceived by the bigamist, a son born of such
a union shall also be legitimate.”

In Ex parte Soobiah & Others: in re Estate Pillay (1948)
(1) S.A. (N) at page 882. it was stated that the genuine belief
of one party that the marriage entered into is valid and binding
is sufficient to entitle the Court to regard the union as a
putative marriage, and the children as leg'timate.

In H. V. C. (1929, T.P.D. 922 — the full report is not available),
it was held that the issue of a putative marriage is legitimate
and that our Courts will, in a proper case, so declare such an
issue, provided one of the putative spouses bona fide believed

159

the marriage to be lawful and provided further that the rights of
other persons, not parties to the proceedings, are not prejudiced
by such declaration. [See also Lionel v. Hepworth, 1933, C.P.D.,
481; Ex parte L (also known as A) 1947 (3) S.A. (C), 50; and
Potgieter’s case supra.]

It is clear that the union contracted by the parties on 7th
December, 1942, is a putative marriage and, on the authority
of the cases cited, Titus would be legitimate if he had been
born during the subsistence of that marriage. How does that
fact that he was born before the marriage affect his position?
It is clear that an illegitimate child becomes legitimated by the
marriage of the parents, subsequent to its birth, and, on the
authority of Ex parte J. [1951 (1), S.A. (O), 665], this is so even
if it were an adulterine child. The birth of such child can be
registered in the birth register as the issue of its parents but only
if the subsequent marriage between them was lawful. (See
Section 10 of Act No. 17 of 1923, as amended by Section 4
of Act No. 7 of 1934.) This seems to Indicate that an illegitimate
child is not legitimated by a putative marriage of its parents.
However, I preter to leave this question open, firstly, because
the Roman-Dutch Law authorities dealing with this matter are
not available, and secondly, because I do not intend to make
an order in terms of prayer (2) as such order would affect the
heritable rights of the children of the customary union (if it is
valid) and they are not parties in this action. It is stated that
the first wife had no children.

It is ordered that the marriage between Rosey Sihiya (born
Dlamini) and Christopher Sihiya celebrated on the 7th December.
1943, at Kokstad, m the district of Mount Currie, is declared
null and void, ab initio, that the Registrar of Births, Marriages
and Deaths, Pretoria, is authorised to make a note of this order
against the entry in his Register and that defendant in recon-
vention pay the costs of this action. The custody of the child
Titus Dalewonga is awarded to plaintiff in reconvention.

Plaintiff: In default.

For Defendant: Mr. F. Zietsman, Kokstad.

SOUTHERN NATIVE APPEAL COURT.

N.A.C. CASE No. 24/52.

NATAL V. BODLIYASE AND ANOTHER.

Kokstad: 12th June, 1952. Before Sleigh, President, Wilkens
and Van Aswegen, Members of the Court.

COMMON LAW.

Native Appeal Case — Damages for assault — Practice and Proce-
dure— Maxim pari delicto — Maxim volente non fit injuria —
Assaidt has been established by the evidence.

Summary; Appellant sued respondents for the sum of £203. 16s.
6d. as damages for assault. The respondents deny the assault
and plead that on the day in question an affray took place
in which appellant and respondents voluntarily participated.
The Native Commissioner held that appellant was in pari
delicto and was not entitled to damages.

Held:

(1) That the assault has been proved.

(2) That the maxim in pari delicto is applicable to contracts

and has no place in the realm of delicts.

(3) That it is assumed that the respondent intended the

maxim volente non fit injuria to apply in their pleas.

160

Appeal from the Court of Native Commissioner, Umzimkulu.

Sleigh (President), delivering the judgment of the Court: —

Appellant sued respondents the one paying the others to be
absolved for the sum of £203. 16s. 6d. as damages for assault and
alleged that on 6th August, 1950, the respondents acting in
concert and with a common purpose wrongfully assaulted appel-
lant and inflicted various wound; which are described. He
claims that he suffered permanent injury. Appearance was entered
by Mr. .Attorney B. van Niekerk on behalf of six of the
respondents and by Mr. Attorney D. A. Jennings on behalf of
the remainder. They filed virtually identical pleas in which the
assault is denied and it is alleged that on the day in question an
affray took place in which appellant and respondents voluntarily
participated. Appellant was. therefore, in pari delicto with
respondents and other participants in the said affray and conse-
quently he is debarred from claiming damages for any injuries
which he may have sustained in the course of the affray.

At the outset of the trial it was agreed that the liability of
respondents be decided first and that if liability is established,
evidence of damages suffered be led later. The Assistant Native
Commissioner, after hearing evidence from both sides, held that
as appellant received his injuries as the result of participating in
a fight, he was in pari delicto and was not entitled to damages
and entered judgment for defendants. If appellant and his
witnesses are to be believed he and his party where assaulted with-
out provocation while they were peacefully walking in the
location, but the evidence goes to show that they started the
trouble and were originally the aggressors. They were chased
by the respondents and when they got near the dipping tank they
faced the respondents and a fight took place during which appel-
lant received numerous injuries including a stab wound in the
knee.

The maxim in pari delicto patior est condictio defendentis is a
principle of law which curtails the right of persons, who have
entered into an illegal or immoral contract, to avoid the conse-
quences of the performance or part performance of such contract
(see Jajbhay v. Cassim, 1939, A.D., 537). The doctrine is appli-
cable in the law of contracts and has no place in the realm of
delicts. It is significant that none of the works on torts to which
I have been able to refer even mentions this principle. However,
it is also a principle of law that no man can complain of an act
which he has expressly or impliedly assented to. This principle is
commonly expressed by the maxim volenti non fit injuria and we
assume that this is what the respondents intended to convey in
the pleas. In order to establish the defence that the plaintiff
consented to run the risk of harm, it is necessary to show not
merely that the plaintiff had knowledge of the danger, but also
that with a full appreciation of its nature and extent he volun-
tarily elected to encounter it. The essential elements are know-
ledge, appreciation and consent (see McKerron's Law of Delict,
3rd Ed., pp. 22-3).

In the present case respondents do not dispute that the injuries
suffered by appellant were inflicted by one or more of them, but
they contend that they are not liable because appellant and his
partv voluntarily took part in the fight.

The onus was on them to prove their plea of volenti non fit
injuria. Appellant and his witnesses state that they were armed
with sticks, whereas respondents were armed with assegais, battle
axes and swords. This respondent No. 13 denies. He asserts
that they were armed with sticks only and that an assegai was
taken from one of appellant’s party. Appellant states that he was
stabbed with an assegai by respondent No. 4 and was struck with
a battle axe by respondent No. 6. This is not denied by these
respondents. Appellant’s witness, Zephania, states that he was
struck with a sword on the head and suffered a fracture on the
forearm and a fracture on the leg below the knee. This indicates

161

that heavy or sharp instruments must have been used. His other
witness, Mtshato, says “ that the respondents’ party were armed
with swords, assegais and battle axes, and it is not disputed that
seven out of the eleven in appellant’s party were in hospital for
considerable periods; whereas according to the evidence the
injuries received by respondents’ party were of a superficial
nature. We consequently reject the evidence for respondents
that they were armed with sticks only.

The onus was on respondents to prove that appellant’s party
knew that respondents were armed with dangerous weapons, and
with this knowledge consented to run the risk of injuries by
these weapons. It is improbable that appellant’s party was aware
that respondents’ party was so armed, otherwise they would have
escaped while they had the opportunity to do so, and, in any
event, this Court cannot assume — there being no evidence on the
point — that they consented to take the risk of being struck with
such weapons. Respondents have therefore failed to establish
their defence and consequently the Native Commissioner should
have found that they committed an assault upon appellant and his
party.

The appeal is consequently allowed with costs, the judgment
of the Court below is set aside and the record is returned to that
Court for further hearing.

For Appellant : Mr. F. Zietsman, Kokstad.

For Respondent: Mr. Walker, Kokstad.

SOUTHERN NATIVE APPEAL COURT.

N.A.C. CASE No. 25/52.

TYALITI V. SHENXANE.

Umtata: 19th June, 1952. Before Sleigh, President, Mundell
and Nel, Members of the Court.

COMMON LAW.

Native Appeal case — Damages for adultety and pregnancy —
Marriage by civil rites — Rights of action flows from the
marriage — No Native Law involved — Damages should be
awarded according to Common law.

Summary: Plaintiff sued defendant for 5 head of cattle or their
value, £40, for damages for adultery and pregnancy of his
wife. Plaintiff married his wife according to civil rites. The
Native Commissioner realised this too late but refers to it
in his reasons and states that the action should have been
brought under common law.

Held:

(1) That no question of Native Law is involved and conse-

quently the Native Commissioner had no discretion to
apply Native Law.

(2) That damages should have been awarded on the basis

allowed under Common Law.

(3) That plaintiff will only be entitled to ' damages for

contumelia inflicted upon him.

Cases referred to:

Notenjwa v. Mafeke, 1940, N.A.C. (C. & O.), 146.

Nazo V. Lubisi, 1946, N.A.C. (C. & O.), 18.

Bukulu V. Cebisa, 1946, N.A.C. (C. & O.), 45.

7011-3

162

Appeal from the Court of Native Commissioner, Cala.

Sleigh (President), delivering the judgment of the Court: —

This is an appeal against a judgment for plaintiff for five head
of cattle or their value, £40, and costs as damages for adultery
with, and the pregnancy of, plaintiff’s wife.

The adultery has been established and on this score the appeal
fails. It appears, however, that plaintiff married his wife according
to civil rites. The Native Commissioner unfortunately realised
this too late, but he refers to it in his reasons and states that
the action should have been brought under Common Law, quot-
ing Nontenjwa v. Mafeke [1940, N.A.C. (C. & O.), 146], as his
authority. Apparently, as a result of his remarks, application is
now made to argue the following additional grounds of appeal: —

“ 1. That the plaintiff having been married by Christian Rites
it was incompetent for him to sue for damages for
adultery according to Native Custom. That it is clear
from the evidence and from the fact that he claimed
five head of cattle or their value that he was claiming
according to Native Custom and the Court accordingly
erred in granting judgment in his favour.

2. That in any event, as the plaintiff was not entitled to
damages in the amount fixed by Native Custom, he was
bound to prove his damages in order to succeed and
he failed to do this the Court erred in giving judgment
in his favour.”

Mr. Tsotsi who appears for plaintiff (respondent) does not
oppose the application which is granted.

in this Court it is contended that the Native Commissioner
had a discretion to decide the case either according to Romatv-
Dutch Law or according to Native Law, that plaintiff had in
fact a dual remedy. We cannot agree with this contention.
Plaintiff is entitled to obtain redress for the injury suffered. His
right of action flows from the marriage. If he had been living
with his wife in concubinage he would have had no right of
action. The action is entirely based on the unlawful violation
of his marriage rights. Take the marriage away and he would
have no right of action. Since it was a civil marriage we must
look to the Common Law to ascertain what redress, if any,
plaintiff is entitled to. No question of Native Law was involved
and consequently the Native Commissioner had no discretion to
apply Native Law to the case (see Nontenjwa s case supra and
the cases there quoted.)

Under Common Law the injured husband is entitled to
damages on the ground of loss of consortium and for contumelia
inflicted upon him [see Nazo v. Lubisi, 1946, N.A.C. (C. & O, 18].
The Native Commissioner should not therefore have awarded
the plaintiff the customary fine for adultery coupled with
pregnancy, but should have awarded damages on the basis
allowed under Common Law, having regard to all the circum-
stances of the case [see Bukulu v. Cebisa, 1946, N.A.C. (C. & O.),

In the present case there has been no loss of consortium, since
plaintiff’s wife has not left him and he has no intention of
divorcing her. Plaintiff will therefore be entitled to damages
only in respect of the contumelia inflicted upon him, and this,
the Native Commissioner admits, has not been seriously explored.

It thus becomes necessary to return the case to the Native
Commissioner so that this aspect of the case could be investi-
gated.

The appeal is allowed with costs, the judgment of the Court
below is set aside and the record is returned to that Court for
evidence of the amount of damages suffered by plaintiff under
Common Law, and for a fresh judgment.

For Appellant: Mr. Muggleston, Umtata.

For Respondent: Mr. Tsotsi, Lady Frere.

163

SOUTHERN NATIVE APPEAL COURT.

N.A.C. CASE No. 26/52.

DLWENGU V. DLWENGU.

Umtata: 23rd June, 1952. Before Sleigh, President, Mundell and
Nel, Members of the Court.

NATIVE LAW AND CUSTOM.

Native Appeal Case — Native Custom — Ubulunga cattle claimed
from heir in qadi house — Herbalist acquire stock in his own
name and it belongs to his great house.

Summary: Plaintiff is the heir in the qadi house of the late
D and defendant is the heir in the great house. When D
died there were 22 cattle, 87 sheep, 14 goats and two horses
at his kraal. These are claimed by M, the qadi wife, on
behalf of her minor son, the appellant who, duly assisted
sued defendant for (1) payment of the sum of £45, being
proceeds of sale of wool, and (2) a declaration of rights in
regard to the cattle, sheep, goats and horses.

The defence is that the stock belonged to D’s great house
and they are therefore defendant’s property.

The Native Commissioner dismissed claim (1) and in regard
to claim (2) he declared plaintiff to be the owner of 12 cattle
and granted absolution from the instance in respect of sheep,
goats and horses. Defendant has appealed.

Held:

(1) That the cattle acquired by herbalist belong to his great

house.

(2) That plaintiff has failed to satisfy the Court which parti-

cular cattle belonged to his mother’s house.

(3) That the Native Commissioner was correct in giving an

absolution judgment in regard to the sheep, goats and
horses.

Cases referred to:

Oliver’s Transport v. Divisional Council, Worcester, 1950 (4),
S.A. (C.), 537.

Appeal from the Court of Native Commissioner, Mqanduli.

Sleigh (President), delivering judgment of the Court: —

Plaintiff is the heir in the qadi to the great house of the late
Dlwengu and defendant is the heir in the great house. When
Dlwengu died there were 22 cattle, 87 sheep, 14 goats and 2
horses at his kraal. These are claimed by Mamqwambi, the
qadi wife, on behalf of her minor son, the appellant who, duly
assisted, sued defendant for (1) payment of the sum of £45 being
proceeds of the sale of wool of the sheep, and (2) a declaration of
rights in respect of the cattle, sheep, goats and horses.

The defence is that the stock of which there are at present 24
cattle, 78 sheep, 14 goats and 2 horses, belonged to the late
Dlwengu’s great house and that they are therefore defendant’s
property.

The Assistant Native Commissioner dismissed claim (1). In
regard to claim (2) he declared plaintiff to be the owner of 12
head of cattle and granted absolution from the instance in respect

164

of the sheep, goats and horses. Defendant was ordered to pay
costs and he has appealed.

During the course of her evidence Mamqwambi stated that four
of the cattle, which she described, are her ubulunga cattle. The
appeal is against the judgment in respect of 8 of the 12 cattle,
against the judgment of absolution and against the order as to
costs.

The Native Commissioner has given no judgment in regard
to the balance of the cattle claimed. As there is no cross-
appeal the judgment in this respect will be left as it is.

It appears from the evidence that Dlwengu was a herbalist and
lived at his father’s kraal where Mamqwambi was his pupil.
He quarrelled with his father and then established his own kraal.
Mamqwambi as well as the other novices accompanied him. She
completed her training and later he married her as his third and
qadi wife. Thereafter they both practised at the same kraal. She
states that besides the four ubulunga cattle, she trained eight
persons whom she names and received a beast from each as her
fee. She did not identify these cattle or their increase. In fact
she states that she is unable to do so, nor is there any other
evidence to identify them.

Now it is obvious that the evidence does not justify a judgment
for plaintiff in respect of 8 of the 12 cattle. Before defendant
can be expected to challenge Mamqwambi’s evidence he must
know what cattle she claims.

There was an onus on plaintiff to satisfy the Court as to which
particular cattle belong to his mother’s house. This he has
failed to do in so far as the 8 cattle are concerned. To this
extent the appeal succeeds.

In regard to the absolution judgment there is no evidence as
to how the goats and horses were acquired. The only evidence
in favour ot plaintiff is that they run at the kraal where his
mother resides. But Dlwengu also resided at that kraal and it is
not disputed that he acquired stock during the course of his
profession as a herbalist. Any stock so acquired would belong
to his great house. In so far as the sheep are concerned,
it is common cause that they are earmarked stump and skey left
ear. Mamqwambi says that this is the mark of her house, but
she admits that no sheep were allotted to her by her husband,
and there is no evidence that she ever earned any. If all the
sheep at the kraal bear the same mark, as Mamqwambi says, how
were the sheep earned by her husband marked? The evidence
is too vague altogether. The Native Commissioner was therefore
correct in giving a judgment of absolution in respect of the sheep,
goats and horses.

It is contended on behalf of defendant that on the evidence,
he was entitled to a full judgment. This would be so if the
Native Commissioner believed the evidence for the defence and
rejected that for plaintiff [see Oliver’s Transport v. Divisional
Council, Worcester, 1950 (4), S.A. (C.), 537]. Defendant did not
prove that the sheep, goats and horses belonged to his mother’s
house. In fact the Native Commissioner says that the claim for
the sheep, goats and horses was entirely overlooked by both
parties, and no evidence was adduced in respect thereof. Defen-
dant is therefore not entitled to a full judgment.

In regard to the appeal against the order as to costs. The trial
lasted two days and judgment was then reserved. Counsel are
agreed that in view of the plea, plaintiff had to come to Court
to establish his claim to the ubulunga cattle and that he was
therefore entitled to costs on the basis that the trial would have
lasted one day and that defendant is entitled to appearance costs
for one day and for taking reserved judgment which fee we are
informed, amounts to 10s. As appearance costs are equally
divided plaintiff will be awarded costs up to and including 15th
October, 1951, the date the case was set down for trial, less the
sum of 10s. being the fee for taking reserved judgment.

165

The appeal is allowed with costs and the judgment of the
Court below in respect of claim (2) is altered to read : —

“ Plaintiff is declared to be the owner of the four ubulunga
cattle. Absolution from the instance in respect of the 8
cattle and the sheep, horses and goats. Defendant is ordered
to pay costs up to and including the 15th October, 1951,
less 10s.”

For Appellant: Mr. Hughes, Umtata.

For Respondent : Mr. Muggleston, Umtata.

SOUTHERN NATIVE APPEAL COURT.

N.A.C. CASE No. 27/52.

XALISILE V. MHLOHLENI.

Umtata: 23rd June, 1952. Before Sleigh, President, Mundell and
Nel, Members of the Court.

NATIVE LAW AND CUSTOM.

Native Appeal case — Interpleader action — Ownership of cattle
did not vest in appellant at time dowry was paid, nor when
judgment H’Ui given against the debtor — No specific cattle
claimed — Marriage by Native Custom — Marriage dissolved by
restoration of dowry.

Summary: H (the claimant) married M by Native Custom and
paid dowry to K (the debtor). V (appellant) claimed that he
was the person entitled to M’s dowry. He sued K for delivery
of the dowry and obtained judgment. When M. became aware
that the dowry would go to V she deserted her husband and
K then returned the dowry to H in whose possession the
cattle were attached. The Native Commissioner declared
the cattle not executable and appellant has appealed.

Held:

(1) That the ownership of cattle did not vest in appellant

at time dowry was paid.

(2) That ownership did not vest in appellant when judgment

was given against the debtor.

(3) That union was dissolved by restoration of dowry.

(4) That no specific cattle were claimed.

Cases referred to:

Mayekiso v. Mapitsha, 1945, N.A.C. (C. & O.), 55.

Dlumti V. Sikade, 1947, N.A.C. (C. & O.), 47.

Appeal from the Court of Native Commissioner, Mqanduli.

Sleigh (President), delivering the judgment of the Court: —
No evidence was led in this interpleader action but the parties
are agreed on the following facts: —

Heshe Mhlohleni (herein referred to as claimant) married
Mbuku according to Native Custom and paid dowry for
her to Kutu Xalisile (herein referred to as the debtor). Vatile
Xalisile (now appellant) claimed that he was the person
entitled to Mbuku’s dowry. He sued the debtor for delivery
of the dowry and obtained judgment for 7 cattle or their
value. When Mbuku became aware that the dowry would
go to appellant she deserted her husband and the debtor then
returned the dowry to claimant in whose possession the
cattle were attached.

166

On these facts the Assistant Native Commissioner declared the
cattle not executable and appellant has appealed on the following
grounds; —

1. That as respondent had a judgment for the specific cattle

claimed, Kutu (the judgment debtor), could not give claim-
ant title to the cattle.

2. That as respondent had been declared the dowry eater

and entitled to the dowry, any claim by the husband for
their return must be directed to him more particularly
as desertion of wife from husband was admitted to have
been for a maximum period of three weeks.

3. Respondent by the judgment of the Court has been deprived

of his elementary rights to ascertain —

(a) whether in fact desertion did take place;

(b) whether the wife had just cause to desert;

(d) what cattle were returnable, if any, on desertion.

The record does not say so but it appears to be common cause
that Mbuku was living at the debtor’s kraal at the time of her
marriage and that she returned to that kraal.

In regard to the first ground of appeal it is sufficient to say
that appellant did not obtain judgment for specific cattle.

As to the third ground, it is clear from the admitted facts
that Mbuku deserted without cause and failed to return. At
any rate the return of the dowry to claimant dissolved the union.
While Mbuku and the debtor may have conspired to defraud
appellant of his rights, it cannot be assumed that claimant was
a party to the conspiracy.

The summons follows substantially the usual wording of an
interpleader summons. In the present summons the Court is
asked to determine whether the cattle attached by the Messenger
and claimed by claimant be or be not liable to execution. Now
the cattle will be executable, firstly, if they are the property
of the debtor, but this appellant presumably denied in the case
against the debtor. In any event, the debtor had parted with
ownership at the time of the attachment. The cattle are also
liable to attachment if they are the property of appellant. The
correct approach to the case is therefore whether the ownership
in the cattle had vested in appellant before they were delivered
to claimant

It is customary to pay dowry to the head of the kraal at
which the girl is found. If the head of this kraal is not the
guardian of the girl, he should, if it is at all possible, report
the proposed marriage to the guardian and obtain instructions.
If he then gives the girl in marriage he acts as agent for the
guardian, and the ownership in the cattle will vest in the latter
as soon as all the requisites of a customary union are fulfilled.
In the present case the debtor did not act as agent for appellant,
since he denied appellant’s right to the girl’s dowry. The owner-
ship therefore did not vest in appellant at the time the dowry
was paid, nor did it vest in him when judgment was given against
the debtor, because the judgment was not for delivery of specific
cattle [see Mayekiso v. Mapitsha, 1945, N.A.C. (C. & O.), 55].

In regard to the second ground of appeal, it is well established
Native Law that when a wife has deserted her husband the
latter is entitled to sue the person to whom dowry was paid
for the return of his wife or, failing her return, for the restoration
of the dowry paid for her [see Dlumti v. Sikade, 1947, N.A.C.
(C. & O.), 47, and the cases there quoted]. However, before he
can sue he must putuma his wife and it is then open to the
dowry holder to keta the dowry or the latter may dissolve the
union by returning the dowry before the woman is putumaed.
This is what happened in the present case.

It is, however, contended that claimant should have demanded
the return of his wife or restoration of the dowry from appellant
as the Court b»d held that the latter was entitled to the dowry.

167

Claimant was not a party to that action, and, since at the time
of Mbuku’s desertion, the dowry was still in the possession of
the debtor he was the only person legally liable to restore it.
If claimant had demanded it from appellant he might have been
met with defence that appellant had never received the dowry.

The appeal consequently fails and is dismissed with costs.

For Appellant: Mr. Hughes, Umtata.

For Respondent: Mr. Knopf, Umtata.

SOUTHERN NATIVE APPEAL COURT.

N.A.C. CASE No. 28/52.

ZIBI V. ZIBI.

Umtata: 24th June, 1952. Before Sleigh, President, Mundell and
Nel, Members of the Court.

NATIVE LAW AND CUSTOM.

Native Appeal Case — Native Custom — Institution of heir, farmalir
ties have been proved— Child — Adoption of according to Native
Imw — Evidence — Letter clearly inadmissible — Practice and

Procedure — In an enquiry Native Commissioner’s duty to call
witnesses — Marriage by Christian Rites — The second proviso
to Section 2 of Proclamation 142 of 1910 discussed — Proviso
preserves not only rights of parties to the marriage but also
the consequences flowing therefrom.

Summary: In an enquiry two claimants, namely, appellant and
respondent claim two lots registered in the name of the late
P., Engcobo District. The Native Commissioner found for
respondent and appellant has appealed.

Held:

(1) That the formalities concerning the institution of an heir

have been complied with.

(2) That there can be an adoption of a child in Native Law.

(3) That in an enquiry it is the duty of the Native Commis-

sioner to call witnesses.

(4) That the second proviso to Section 2 of Proclamation

142 of 1910 preserves not only the rights of parties to
the marriage but also the consequences flowing there-
from.

Cases referred to:

Mkanzela v. Rona, 1, N.A.C. (S), 219.

Sobozo V. Notshokovu, 1, N.A.C., 198.

Kwaza v. Nofesi, 2, N.A.C., 17.

Zondani v. Dayman, 2, N.A.C., 132.

Mbeki v. Mbeki, 1934, N.A.C. (C. & O.), 49.

Estate Tontsi v. Executor of Estate Nchela, 21, S.C., 650.
Majwambe v. Majwambe, 4, N.A.C., 123.

Dingiswayo v. Dingiswayo, 4, N.A.C., 124.

Tetani v. Tetani, 1939, N.A.C. (C. & O.), 61.

Njobe V. Njobe & Dube, N.O. 1950 (4), S.A. (C), 545.

Appeal from the Court of Native Commissioner, Engcobo.

Sleigh (President) delivering the judgment of the Court: —

The late Patrick Zibi is the registered owner of Garden Lot
No>. 51 and Building Lot No. 34, Tora Location, Engcobo
District. His only son, Lennox, predeceased him and his widow,
Dorcas, who occupied the lots after his death, died in 1944.
There are now two claimants to the lots, namely, Gladstone

168

Zibi (herein referred to as appellant) and John Zibi (respondent)
on behalf of the minor, Ndodomkosi.

It is common cause that the late Ncanywa Zibi married twice
according to Christian Rites and had four sons by his first wife
and two by his second wife. The sons are, in order of birth,
(1) Patrick, (2) Alfred, (2) Joseph, (4) Peter, (5) Soga and (6)
John (respondent). Patrick had only one wife, not two nor is
Soga his son, as the Native Commissioner says in his reasons.
He married this wife according to civil rites, and, as I have
already stated, his only son predeceased him. Alfred was an
interpreter in Umtata and died in 1944. He had five sons,
namely, Stanley, Gladstone (appellant) and three others. Stanley
and his only son are both dead. Joseph, Peter and Soga are
also dead. Soga died in 1942 and his eldest son is the boy
Ndodomkosi. The following genealogical tree illustrates the
relationship: —

Ncanywa

Patrick (D) Alfred (D) Joseph (D) Peter (D) Soga (D) John (respdt.)

Lennox (D) Stanley (D) Gladstone (appellant)
I 3 others

Frank (D) Ndodomkosi Another

As Patrick left no male descendants his heir, under the Table
of Succession, would be appellant; but the Native Commissioner,
in an estate inquiry, found that at a properly convened and
conducted meeting Patrick instituted Soga as his heir and that
consequently the two lots devolve upon Soga’s heir, Ndodomkosi.
From this finding appellant appeals on several grounds and, at
the hearing of the appeal, leave was granted to argue additional
grounds.

Before dealing with the grounds of appeal I must refer to
the manner in which this appeal was noted. The finding was
delivered on 19th December, 1951. The notice of appeal is
dated 8th January, 1952, and was received by the Clerk of the
Court on the 9th January, but security for respondent’s costs was
not lodged until the 18th January. The Rules of the Court were
therefore not complied with. The attention of appellant’s
attorney is drawn to Rule 5 (3) of Government Notice No.
2887 of 1951.

The first question for decision is whether Soga was instituted
as heir and, if so, whether the institution was lawful.

It is common cause that Patrick was a minor chief of the
Hlubi tribe and headman of Tora location, and that about 1926
and after the death of Lennox he called a meeting of relatives
and residents of the location which meeting was attended by
Magamdeli Mkatshane of Nqamakwe, Lunda Ndondo of Tsomo
and Silwanyana Ntliziyo of St. Marks District. They are also
chiefs of the Hlubi tribe. The parties, however, disagree as to
the purpose of the meeting. Respondent and his witnesses say
that the object of the meeting was to appoint an heir for Patrick
who was sickly and whose son had died. Respondent states that
Patrick complained at the meeting that he had written to Alfred
and Joseph, who were employed at Umtata and Mqanduli
respectively, asking them to give him a son but they had refused,
and that Patrick then announced that he was adopting Soga as
his heir. Respondent as well as other witnesses say that Alfred’s
letter in reply was read out at the meeting. It appears, however,
that although respondent was at the time an adult he did not
actually attend the meeting as he was still uncircumcised.

169

Bonga Dlwati and Charles Twayise support respondent’s
evidence in regard to the announcement made by Patrick. It
appears from their evidence that Peter and Soga were present
at the meeting but not Alfred and Joseph.

Appellant admits that he has no personal knowledge of what
transpired at the meeting. Henry Stokwe, who was a herd boy
at Patrick’s kraal, says that he heard that Patrick had said that
Soga was to act for him as head, but that he never heard that
Soga was also to be the heir. Ebenezer Sobantu, who attended
the meeting, says that Patrick stated that he wanted one of
his younger brother’s sons as a son but that he was told that
they were still being educated. He says that Patrick then said,
“ Hlubis, here is a child of my father (meaning Soga) and there-
fore he must be my deputy ”. He goes on to say that Patrick
mentioned that Soga was to succeed him as headman.

Alice Zibi, a daughter of Patrick, states that she was in
Johannesburg in 1926 and that although she heard it said in the
location that Soga had been adopted as heir, neither her father
nor her mother informed her of the adoption.

The evidence of Ebenezer and Alice goes a long way to support
respondent’s version. It is clear from Ebenezer’s evidence that
Patrick wanted an heir and with this object in view approached
his brothers Alfred and Joseph. Their excuse that their children
were still being educated is unacceptable since one of their sons
could have been instituted as heir even if he were still at school.
There is evidence that they suspected that Lennox had been
killed by witchcraft and they feared that a son given to Patrick
might suffer a similar fate. This is a more reasonable explana-
tion for their refusal to part with a son.

The evidence that the object of the meeting was merely to
appoint a deputy headman for Patrick is also unconvincing. If
this were the object of the meeting, there was no necessity to
call the meeting at all. The same result could have been
obtained by notifying the Native Commissioner that on account
of Patrick’s illness Soga would represent him as headman. If,
on the other hand, the object was to institute Soga as heir, the
presence of the chiefs from other districts is explained, because
the institution not only affected the succession to Patrick’s estate
but also altered the line of sucession to the chieftainship — a
matter which affects the tribe. The evidence therefore supports
respondent’s contention. Moreover, the fact that Soga lived
at Patrick’s kraal and presumably administered Patrick’s estate
without objection by the rest of the family is further proof
that he was instituted as heir. We consequently agree with the
Native Commissioner that the institution of Soga as heir of
Patrick has been proved.

Appellant, however, contended that it was not competent for
Patrick to institute Soga, the son of Ncanywa’s second wife, as
heir to Ncanywa’s first wife. This contention is not correct. In
Mkanzela v. Rona [1 N.A.C. (S), 219], it was stated that the
institution of an illegitimate child as heir must not have the
effect of disinheriting the legitimate male issue. That case dealt
with the institution as heir of an illegitimate child by an
unmarried woman, but the principle is the same where a father
seeks to institute a junior son as heir in a house in which there
is already an heir. Thus, if there is no heir in the right hand
house it is competent to take a son from the great house and
institute him as heir in the heirless hou.se (see Sobozo v.
Notshokovu, 1 N.A.C. 198); but if there is an heir in the great
house and none in the qadi to that house, it would be contrary
to custom to institute another son as heir to the qadi house.
(See Kwaza v. Nofesi, 2 N.A.C., 17.) In the present case
Ncanywa could not have appointed Soga as his heir, because
this would have had the effect of disinheriting Patrick and his
brothers; but there was nothing to prevent Patrick, who had no
surviving male issue, from instituting as his heir one of his
brothers or one of their sons as he originally intended to do.

170

It is contended further that the institution was invalid because
Alfred and Joseph were not present at the meeting. This is
not Patrick’s fault. He is required by custom to call to the
meeting all his relatives. The evidence goes to show that he
wrote to Alfred and Joseph and that he received replies from
them. He had no means of compelling attendance at the meeting.

Further, it is contended that since Patrick was married to his
wife according to civil right the adoption of Soga according
to Native Law and Custom was unlawful and therefore null
and void. There are two observations I wish to make in regard
to this contention. Firstly, the marriage has nothing to do
with the adoption since it is competent for an unmarried person
to adopt a child. Secondly, this was not an ordinary adoption
as is understood by the word.

A native is sometimes given an unwanted or destitute child
which he will bring up and regard as his own, but such child
acquires no heritable rights under native law unless it is instituted
as heir with all the formalities required by custom. But it
is hardly likely that a native would institute an unrelated child
as his heir. Among natives it is a very serious matter for a
man to die without a son, since such son, as heir, has religious
functions to perform. In order to avoid this catastrophe a native
would marry other wives in order to produce a son and, if
this failed, he would appeal to his relatives for a boy who would
then be instituted as heir with the customary formalities.
(Zondani v. Dayman, 2, N.A.C., 132.) The person so instituted
is regarded as heir and succeeds to the house in which he has
been placed to the exclusion of ail others. He loses his right of
succession to the house or family from which he was taken [see
Mbeki V. Mbeki, 1934. N.A.C. (C. & O.), 49]. The person
instituted as heir need not be a child as the present case shows.
The institution of an heir in an heirless house or family is a
custom peculiar to natives, and it is not necessary to comply with
the statutory provisions of the Adoption of Children Act in
order to confer heritable rights on the person instituted. The
contention that the institution of Soga as heir is invalid there-
fore fails.

It appears from the evidence that the Native Commissioner
refused to admit as evidence, a letter written by Peter to
appellant’s brother, Livingstone, in 1945, in which the latter was
informed that Peter had made a statement to the Land Clerk
in the absence of respondent. One of the grounds of appeal
is that the Native Commissioner erred in rejecting this evidence.
The letter is clearly inadmissible. The statement, if it related
to what transpired at the meeting, may be admissible if made
ante litem motam. Apparently, the statement could not be found.

Two further grounds of appeal were abandoned at the hearing
of the appeal, but I must refer briefly to one of these. In it
this Court is requested to order the reopening of the inquiry
for the evidence of additional witnesses. There is no indication
who these witnesses are, what evidence they can give, and why
their names were not given to the Native Commissioner whose
duty it was to call the witnesses. When reopening is requested
for further evidence it is desirable that affidavits be obtained from
the witnesses to be called so that this Court will be in a position
to decide whether their evidence, if accepted, will affect the
finding.

Finally, it is contended that as the allotments in question fall
within the purview of sub-section (2) of Section 23 of Act No.
38 of 1927, appellant is the only person entitled to succeed to
the said allotments in terms of the Table of Succession framed
under Proclamation No. 142 of 1910, as amended. The
contention is that the words “ male descendant ” in the Table of
Succession do not include an instituted heir and according to
this Table appellant takes precedence over Soga. We do not
agree with this contention. In native law an instituted heir is
regarded as the actual child of the person by whom he was

171

instituted. If Soga’s adoption had been in compliance with the
requirements of the Children’s Act, he would be in Law the
child of Patrick, and there is no reason why the same result
could not be affected by an adoption under Native Custom,
which is clearly recognised. The result is that appellant is not
entitled to succeed to the lots in question. His appeal conse-
quently fails and he must pay the costs of appeal.

There is a further point which requires consideration. Although
it is stated that Patrick married Dorcas according to civil rites,
it is not indicated when he married her. But having regard to
the fact that Alice, who is the youngest daughter of Patrick,
was undergoing training in Johannesburg in 1926, it is almost
certain that Patrick and Dorcas were married before 1910, unless
they were first married according to native custom and later
according to civil rites. If they were married before 1910, then
the principles of community of property would apply to the
marriage, unless they entered into an antenuptial contract which
is most unlikely, and in any case the presumption is against
this (see Estate Tantsi v. Executor of Estate Nchela, 21 S.C., at
p. 650). Nor is there any evidence whether Patrick’s estate was
reported to the Master. If not, then the provisions of Act No.
38 of 1927 apply to the estate [see 23 (11) of the Act] and
Section 22 (8) thereof provides that nothing in that Section nor
in Section 23 shall affect any legal right which has accrued or
may accrue as a result of a marriage in community of property
contracted before the commencement of the Act.

Provisions identical to the above and contained in the second
proviso of Section 2 of Proclamation No. 142 of 1910 as amended
by Proclamation No. 127 of 1918, were considered in Majwambe
V. Majwambe (4, N.A.C., 123), where it was held that the

community of property protected the spouses only and if one
of the spouses had died, one half of the joint estate devolves
according to Native Custom. Majwambe’s case came from the
Idutywa District which is a surveyed district. Although the

judgment does not say so, the Court held in effect that the rights
of the issue of the marriage were not protected by the community
of property because the marriage conferred no special rights upon
the issue in view of the provisions of Section 19 read with Section
22 of Proclamation No. 227 of 1898, which provided that the
estates of all natives residing in a surveyed district shall devolve
according to native custom, and quitrent lands according to the

Table of Succession. This was in fact held in Dingiswayo v.

Dingiswayo (4 N.A.C., 124. See also Mhambi v. Mhambi (4
N.A.C., 126). But these cases are not in point since Section 19
of Proclamation No. 227 of 1898 was never extended to Tembu-
land [see Tetani v. Tetani, 1939 N.A.C. (C. & O.), 61].

The present case appears to be different. Sections 19 to 23
of Proclamation No. 227 of 1898 were repealed and re-enacted
in a modified form by Proclamation No. 142 of 1910. What
remained of the former Proclamation was extended to the
Engcobo District by Proclamation No. 320 of 1911. Actually
the survey of the Engcobo District took place many years later.
If I am not mistaken, it was completed about 1924. However,
the right of succession to Patrick’s allotments — which fall within
the purview of Section 23 (2) of Act No. 38 of 1927 — is
presumably governed by Proclamation No. 142 of 1910, Section
8 (2) whereof provides that quitrent lots shall devolve according
to the Table of Succession. The question is whether these special
provisions are affected by the second proviso of section 2 of
the Proclamation. In Njobe v. Njobe & Dube N.O. [1950 (4),
S.A. (C), 545] — a case from Cala (Xalanga) District — it was held
that the proviso preserves not only the rights of the parties to
the marriage but also preserves the consequences flowing there-
from in regard to the issue of such marriage. In that case,
however, the land in question was not quitrent land in a native
location and, in any case. Proclamation No. 227 of 1898 never
applied to Xalanga District.

172

The question whether the protection afforded by the second
proviso of Section 2 of the proclamation or by Section 22 (8)
of the Act, extended to quitrent land in a native location has
not been adequately argued before us and, in any event, as
Patrick’s daughters who may be affected by any ruling which we
may give, are not parties to this case, it becomes necessary to
send the proceedings back to the Native Commissioner for
evidence as to whether the consequences of community of
property apply to the marriage of Patrick and Dorcas. Their
daughters should be given an opportunity to state their claims.

The appeal is dismissed with costs, but the finding of the
Native Commissioner is set aside and the proceedings are returned
to him for further evidence and a fresh finding.

For Appellant : Mr. Tsotsi, Lady Frere.

For Respondent: Mr. Hughes, Umtata.

INDEX OF LITIGANTS.

Page

Balooi V. Balooi 154

Bodliyase and Other; Natal v 159

Dlwengu v. Dlwengu 163

Dube V. Dube 146

Kohliso, Nyanda v 149

Majozi V. Majozi 127

Manqomntu; Nompenxela v 142

Mhlohleni; Xalisile v 165

Mncwango; Mtiyane v 137

Mntaka v. Ngcemu 129

Mtiyane v. Mncwango 137

Mtuti; Nongqungqu v 145

Natal V. Bodliyase and Another 159

Ndimande v. Ndimande 140

Ngcemu; Mntaka v 129

Nompenxela v. Manqomntu 142

Nongqungqu v. Mtuti 145

Nyanda v. Kohliso 149

Shenxane: Tyaliti v 161

Sihiya v. Sihiya 157

Sitole V. Sitole 138

Tyaliti v. Shenxane 161

Umvovo V. Umvovo 151

Xalisile v. Mhlohleni 165

Zibi V. Zibi 167

SUBJECT INDEX.

Administration Act, Native (No. 38 of 1927). —

Section 10 (1) (a) 129

Adultery —

Allegation of sterility 140

Damage for, under Common law 161

Marriage by civil rights 161

Agency —

Court officials not agents of parties 127

Appeals to Appellate Division —

Application for leave to appeal 151

Appeals to Native Appeal Court —

Forwarding of appeal records 138

Security 138

Unstamped notice of appeal 138

Assault —

Damages 159

Maxim “ in pari delicto ” has no place in realm of delicts. 159

Maxim “ volente non fit injuria ” 159

Attorney —

Penalising client for attorney’s negligence 154

Children —

Adoption under Native custom 167

Born of putative marriage 157

Illegitimate 157

Contracts —

Doctrine of undue enrichment 137

in pari delicto rule 159

Witnessing of agreements between Natives 137

Costs —

Order that costs to abide final determination of case

151

Page

Courts: Native Appeal Courts: (See also “ Rules ”)—

Appeals to Appellate Division 151

Forwarding of appeal records 138

Security \\ i3g

Unstamped notice of appeal ] 138

Courts: Native Chiefs’ Courts —

Chief functus officio once judgment given 127

Customary Union (See also “ Lobolo ”) —

Dissolution: restoration of lobolo 165

Estates —

Calling of witnesses by Court: Enquiries 167

Heir —

Custodian or keeper cannot sue on behalf of absconding

owner 149

Institution of heir: formalities 167

Liable for debts and obligations of deceased father 142, 151

Preservation of absconder’s property 149

Presumptive heir according to Native custom 149

Where heir inherited nothing 142

Husband and Wife —

Allegation of sterility 140

Bigamous marriage 157

Children bom of bigamous marriage 157

Damages for adultery: Civil marriage 161

Divorce on grounds of adultery 140

Second proviso to Sect. 2. Proc. 142/1910 167

Interpleader —

Ownership: passing of 165

Judgment Debt —

Debtor’s duty as regards liquidation 127

Jurisdiction: Native Commissioners’ Courts —

Section 10 (1) (a) Act No. 38/27 129

Status of person in respect of mental capacity 129

Lobolo —

Claimed by heir 145

Restoration of: dissolution of union 165

Maintenance —

Illegitimate child 157

Mandament van Spolie —

Disposing of issue of fact on affidavits 146

Marriage by Christian Rites —

Allegation of sterility — divorce 140

Damages for adultery to be awarded under common law.. 161

Declaring nul and void: bigamous marriage 157

Divorce: adultery 140

Putative marriage: children illegitimate 157

Second provision Sect. 2 Proc. 142/1910 167

Native Customs —

Absconder: presumptive heir 149

Heir liable for debts and obligations of deceased father. . . 142, 151

Nqoma cattle 142

Ubulungu cattle 163

see also “ Customary Union ” and “ Lobolo ”.

Onus —

Onus of proof on defendant 129

iii

Page

Plea —

Party not in possession of mental faculties 129

Practice and Procedure —

Appeals —

To Appellate Division —

Application for leave 151

To Native Appeal Court —

Appeal struck off roll : re-instatement 154

Forwarding appeal records 138

Security 138

Unstamped notice of appeal 138

Contradictory affidavits on issue of fact 146

Onus of proof on defendant 129

Penalising client for attorney’s negligence 154

Point not canvassed in Court below : taking of mew muto

by N.A. Court 145

System of law to be applied 151

Vindicatory as opposed to spoliatory action 154

Rules: Native Appeal Court —

Rule 5 (3) 138

Rule 32 (2) 138

Old Rule 6 138

Old Rule 8 138

Spoliation —

Summons containing claim for alternative value of cattle is

vindicatory, not spoliatory 154

Statutes —

See “ Administration Act, Native, No. 38/27

Act 31 of 1917: Sections 37 (2) and 44 129

Prod. No. 142/1910: second proviso to Section 2 167

System of Law to be Applied —

Native Commissioner’s discretion 151

Tender —

Not communicated to judgment creditor 127

To pay into Court after judgment 127

Vindicatory Action —

Summons containing claim for alternative value of cattle. . 154

Action to be taken by owner 154

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VERSLAE

VAN DIE

NATURELLE-APPELHOWE

1952(3)

REPORTS

OF THE

NATIVE APPEAL COURTS

DIE STAATSDRUKKER. PRETORIA
THE GOVERNMENT PRINTER. PRETORIA

G.P.-S.9472-1932-3-815.

SUBJECT INDEX.

Native Appeal Court Reports 1952 (3).

Page

Appeals from Chief’s Court —

Application for extension of time within which to note
appeal to be preceded or accompanied by notice of appeal 194

Condonation of late noting 210

Appeals to Appellate Division —

Amount in dispute trivial 190

Assault —

Liability of father or guardian 212

Contracts —

Exchange 196

Infant betrothal 203

Loan: Illegal object 216

Costs in Native Appeal Court —

Appeal: where judgment could have been, but was not,

abandoned 194

Where wrong judgment in Court a quo results from that

Court acting mero motu 201

Customary Union —

Infant betrothal repugnant to principles of public policy. 203

Payments made in respect of infant betrothal not

recoverable 203

Damages —

Assault 212

Boycotting business 173

Defamation 201

Defamation —

Damages 201

Public retraction and apology 201

Mere use of words actionable per se, gives rise to

presumption of malice 201

Delivery —

Pointing out of cattle 196

Ejectment —

Stand in Municipal Location 191

Evidence —

Application to recall defendant by Plaintiff 208

Secondary evidence as to contents of document 206

Inferences—

Reasoning from 173

Interpleader —

Cattle attached at kraal of judgment debtor 200

Presumption as to ownership 200

Rebuttal of presumption 200

Warrants of execution to accompany record of proceedings 200

Judgments —

Must be definite and final to substantiate plea of resjudicata 215

Lobolo —

Infant betrothal: Payment made thereunder not

recoverable 203

Natal Code of Native Law —

Proclamation No. 168 of 1932 —

Section 132 (2) 201

Section 141 212

Pleas —

Res judicata 215

Practice and Procedure —

Appeals to Appellate Division : Amount in dispute trivial 190

Application for recall of witness 208

Costs: Wrong judgment occasioned by Court a quo acting

mero motu 201

Page

Interpleader cases: Relative warrants of execution to

accompany records of proceedings 200

Late noting of appeals : Lack of funds and unsubstantiated

illness 210

Onus, on pleadings, on defendant 196

Plea of res judicata 215

Secondary evidence as to contents of document 206

System of law to be applied : Case emanating from Chief’s

Court 196

Test case : Evidence on issues to be confined to particular

case being tried 173

Res Judicata — •

Plea of. 215

Rules; Native Appeal Courts —

Rule 2 (1) 209

Rule 17 201

Rules; Native Chiefs’ Courts —

Rule 11 194

Old Rule 7 194

Statutes — .

Administration Act, Natives No. 38 of 1927 —

Section 12 196

Section 15 206

Natal Code of Native Law, Proclamation No. 168 of 1932 —

Section 116 203

Section 132 (2) 201

Section 141 212

System of Law to be applied in Native Commissioner’s
Court —

Case emanating from Chiefs’ Court 196

Test Cases —

several cases consolidated for purposes of trial 173

evidence in test case confined to issued in that particular

case 173

Witnesses —

Application for recall of witness 208

INDEX OF LITIGANTS.

Page.

Cebekulu vs. Shandu 196

Cekwana, Mnikati vj 206

Dhlamini and others vj. Gazu 212

Duve, Ncube vs 216

Gazu, Dhlamini and others vs 212

Jiyane vs. Mthembu 200

Kunene, Tshange vs 215

Kwinana and another, Lengesi and others vs 190

Lengesi and others vs. Kwinana and another 190

Mbata vs. Mdhlalose 210

Mdhlalose, Mbata vs 210

Mdhletshe, Zulu vs 203

Mfaxa, Mpendu vs 191

Mkize vs. Mkize 194

Mnikati vs. Cekwana 206

Mnyandu vs. Zulu 201

Mpendu vs. Mfaxa 191

Mthembu, Jiyane vs 200

Mtiyane, Shangase vs 208

Mutolo vs. Ngema 173

Ncube vs. Duve 216

Ngema, Mutolo vs 173

Shandu, Cebekulu vs 196

Shangase vs. Mtiyane 208

Tshange vs. Kunene 215

Zulu vs. Mdhletshe 203

Zulu, Mnyandu vs 201

173

CEN I R AL

NATIVE APPEAL CO URL

MUTOLO V. NGEMA.

Johannesburg: 20th July, 1952. Before Marsburg, President;

Stafford and Austin, Members of the Court.

Inferences — Reasoning from — £5,000 damages or other alter-
native relief and costs of suit for alleged boycotting of and
interfering with Plaintiff's business.

Held: Where several cases of similar purport are consolidated
for purposes of trial the evidence in the test case should
be confined strictly to the issues in that particular case.

Held further: The doctrine of common purpose applies only
when persons conspire together for an unlawful purpose.

Cases referred to ; —

Rex V. Dhlumayo 1948 (2) S.A. 677 (A.D.). Absolom
Mtombeni v. Motsanyane, 1948, N.A.C. (C.D.), 18. Rex
V-. Blom, A.D. 1939.

Appeal from the Court of the Native Commissioner, Johannes-
burg.

Marsberg (President), delivering the judgment of the Court: —

In the Native Commissioner’s Court at Johannesburg Plain-
tiff, Frederick Ngema, by cession of action from the Bantu
Bus Service Limited, a company duly registered with limited
liability according to the laws of the Union of South Africa,
sued Defendant Isaiah Mutolo, described as a Native of No.
1740, Block 4, Jabavu, Johannesburg, for damages in the sum
of £5.000 for interference with plaintiff’s business.

Plaintiff’s allegations are as follows: —

During the period 5th December, 1948, to 6th January,
1949, the Defendant interfered with the Company’s lawful
conduct of its bus service and prevented it from operating
the said service by the following means: —

(a) He induced and incited persons to throw stones at
the Company’s buses plying between Jabavu and
Nancefield Station, with the result that they did
throw stones at the said buses.

(b) he threatened to assault and/or to procure the assault
of persons about to board the Company’s buses and
by this means intimidated them and induced them
not to board or use the Company’s buses.

of anyone who used the Company’s buses, and by
this means induced persons not to use the Company’s
buses.

In answer to a request. Plaintiff gave further particulars as
follows : —

(a) (i) At a meeting held at Jabavu Township on the 5th
December, 1948, the Defendant acting in concert
with Johnson Nagatso and Nelson Putswa and
others, incited and induced the persons present
thereat to do the acts alleged in the summons, and
also that such persons should inform, incite and
persuade all other users of the buses of the Company
who were not present at the meeting, to do the same
acts.

(ii) on the 6th December, 1948, and at Jabavu Bus Termi-
nus Defendant induced and incited persons to carry
out the said acts, which they did.

174

(iii) subsequent thereto the Defendant and the others
mentioned in (i) above held further meetings when
large numbers of persons were present, during
December, 1948, and January, 1949, when they
incited and induced such persons to continue with
the said acts.

(b) and (c) Defendant induced and incited the Native inhabi-
tants of Jabavu and Moroka townships, as aforesaid. The
names of the persons so induced and incited are to the
plaintiff unknown.

Defendant denied each and every allegation and specially
denied that he did or committed any of the acts alleged
against him.

After a very lengthy trial the Native Commissioner found
in favour of Plaintiff and entered judgment for payment of
£3,900 damages and costs.

Defendant has appealed against the whole judgment on the
following grounds: —

(1) That the judgment is bad in law and contrary to law in

that —

(a) the Native Commissioner erred in holding that the

cession of action granted by the Bantu Bus Service
Limited to the Plaintiff, was a good and bona fide
cession;

(b) the Native Commissioner erred in holding that the

boycott of the Bus Service of the Bantu Bus Ser-

vice Limited, which it is alleged was initiated by the
defendant constituted an actionable wrong on the
part of the Defendant; or, alternatively, he erred

in his finding that Defendant had committed an
actionable wrong;

accepting hearsay, inadmissible and irrelevant evidence
from witnesses which wrongly influenced him in
his judgment against the Defendant, and did further
err in holding that such hearsay inadmissible and
irrelevant evidence was part of the “ res gestae ” of
the case;

(d) the Native Commissioner erred in rejecting the
evidence and relevant exhibit regarding the Annual
General Meeting of the shareholders of the Bantu
Bus Service Limited, held on the 26th February, 1950;

(e) the Native Commissioner erred in his finding that the

Plaintiff had established the case against Defendant,
as set forth in the Plaintiff’s summons and Further
Particulars;

(/) the Native Commissioner erred in his conclusions of
law in regard to the subject of the boycott.

(2) That the judgment is against the evidence and the weight

of evidence; and that the Native Commissioner erred
in his findings of facts found to be proved.

Throughout the lengthy trial Defendant was represented by
Mr. B.A.S. Smits. who also noted the appeal on his behalf, but
when the appeal was called on before us Defendant appeared
in person, unrepresented. Mr. Franklin appeared for Plain-
tiff, Respondent. It was obvious that Defendant would be in no
position to argue upon the points of law involved in the case
and the notice of appeal, nor would he be able comprehensively
to review the evidence or to criticize or challenge the Native
Commissioner’s conclusions and judgment. However, he con-
firmed the notice of appeal and proceeded with the aid of this
Court’s Interpreter shortly to state his case. Thereafter in
discharge of our obligation to render all reasonable assistance
to an unrepresented litigant and to ensure that the ends of
justice were served, it became our task to seek information and

i75

elucidation on a number of points gathered from our reading
of the record as a wliole. After Mr. Franklin had been heard
on the law relating to boycott and other points, much of the
subsequent hearing involved questions from the members of the
Court and answers from Mr. Franklin.

The onus to substantiate his grounds of appeal rested on
Defendant. At the end of his address there was little arising
out of these remarks, as Mr. Franklin pointed out. which called
for a reply. Nevertheless there was a great deal ex facii
the record which called for comment, matters which any legally
trained mind would note, and it was in this direction that
the court pursued its inquires.

Handicapped as he was by a lack of knowledge of the law
and the rules of evidence, by an inability to employ the arts of
debate of the skilled lawyer. Defendant would have been placed
in a most disadvantageous position had he been held to the
formal rules of procedure at the appeal stage and we, as a Court
of Appeal, would have failed in our duty to ensure that justice
be done. Our duty required that we render reasonable assis-
tance to Defendant, a task which we endeavoured to perform
by our interrogation of Plaintiff’s counsel, as indicated above.

As we have pointed out. Defendant was not in a position to
and did not argue upon the points of law involved in this
case but fortunately, in view of the main line which we are
taking in our judgment, it is unnecessary for us to investigate
or determine what may be the law in relation to the subject of
boycott. So far as this case is concerned the matter is not
crucial. We have not heard full argument and to pursue the
inquiry would be of academic interest only. For the purposes of
this case we shall assume and accept that the acts alleged in the
summons and Further Particulars would constitute an actionable
wrong on the part of Defendant and, if proved, would have
entitled Plaintiff to a judgment for damages.

On considering the facts of this case we have not been unmind-
ful of the decision of Rex v. Dhlumayo of the Appellate Division
(1948 S.A.L.R. IT). In this Court we have followed this judgment
as a guiding principle in dealing with appeals on questions of
fact. An appellant must persuade us that the judicial officer
was manifestly wrong or could not reasonably have arrived at
the decision he gave.

On opening the case for the Plaintiff before the Native
Commissioner, Mr. Oshry who then appeared, informed the
Court that Plaintiff was suing three different defendants in cases
Nos. 202, 203 and 204 (of 1949) each for £5,000 damages, that it
was proposed to take case No. 202 first (i.e. present Defendant
Mutolo) and that this would be a test case for all three cases.
There is no other reference anywhere in the record that the
three defendants were made co-defendants or joined jointly and
severally, but there is a great deal of evidence in the record
relating to the two other persons named Magatso and Putswa
which can have no relevance to the present defendant, Mutolo.
The summons is directed to Mutolo alone. There is an allega-
tion in paragraph (a) (i) of the Further Particulars that he
acted in concert with Johnson Magatso and Nelson Putswa
and others but nowhere is there any claim that they be held
jointly and severally liable. We have pointed out previously in
the case of Absolom Mtombeni versus Motsanayane [1948 N.A.C.
(Central) 16] that where several cases of similar purport are
•consolidated for purpose of trial the evidence in the test case
should be confined strictly to the issues in that particular case.
Evidence relating to other parties can have no relevance. It
cannot be taken into consideration in arriving at a decision
in the test case. If it was desired to use evidence against Magatso
and Putswa as evidence against Mutolo on the grounds of
conspiracy or common purpose they should have been joined
together in one action and there should have been a definite
allegation against them that they were guilty of conspiracy.

176

Only on that basis could they have been liable for the acts of:
each in furtherance of the common purpose. As the case stands,
formally before us Mutolo cannot be held liable for the acts of
others. We take the consolidation of those three actions tO'
mean that one will be tested and the others will stand or fall
by the decision in the test case, but the test case must be
decided strictly on the facts and circumstances applicable to
it. It is possible that strong argument could have been advanced
to us on this score under ground 1 (c) of the notice of appeal,
but in the circumstances of the representation before us the
matter was not raised. We shall not comment further here
because it is our purpose to review the issues on the basis
whether there was or was not in fact a conspiracy as alleged
by plaintiff.

Was there a Grand Conspiracy?

In reading the record of this case in cold print the members
of the court have been unable to appreciate for what reasons the
Native Commissioner entered judgment in favour of plaintiff.
The allegations in the summons are specific, yet dt has been
very difficult to find any real evidence to support those
allegations. A great deal of evidence in the case relates to
what is alleged to have taken place at a number of meetings
which were held covering a period of over a month. Mr.
Franklin has submitted that taking all those events together
the conclusion can be drawn that defendant and others have
been consistently hostile to plaintiff and that all the events point
to some plan or conspiracy to injure plaintiff in his business.
The only specific allegations in the summons are that on 5th
December, 1948, defendant, acting in concert with Mogatso
and Putswa and others incited the persons present at a meeting
to do the acts complained of and also that they held further
.subsequent meetings when they incited the persons present to
continue with the said acts. But Mr. Franklin has gone further.
Before us he has suggested that these occurrences were merely
part of a more comprehensive conspiracy involving the Munici-
pality of Johannesburg, Mr. Carr, the Deputy Manager of
Non-European Affairs, the Public Utility Corporation — a bus
service — and the members of the Native Advisory Board, of
which defendant is one. He submitted that all those bodies
were in league for the purpose of getting rid of the plaintiff
and his Bantu bus service, that they were like vultures waiting
for the prey on behalf of the Public Utility Corporation. He
suggested that Mr. Carr, the Deputy Manager went out of
his way to get the Public Utility Corporation to take over
the Bantu bus service of plaintiff, and that Mr. Cadle. the
Location Superintendent was favouring the Public Utility
Corporation by permitting the distribution of pamphlets for
the Corporation through his Native constables. Asked on
what he based those suspicions Mr. Franklin stated that they
were inter alia relying on a statement of one Moremi that
£6,000 had been offered to members of the Native Advisory
Board. Mr. Franklin went so far as to say before us that if
defendant would now inform him who was at the back of the
whole matter he would withdraw his judgment against defen-
dant. It is obvious from a perusal of the record that a great
deal of the cross-examination of the defendant and the wit-
nesses has been directed in an endeavour to elicit information
to support those suspicions. The Native Commissioner has
himself commented that “ Counsel on both sides in their cross-
examination resorted to questions which would have the effect
of confusing the witnesses even more ”. We see then that a
more comprehensive factor has been introduced into these
proceedings than is to be deduced from the pleadings. Practi-
cally the whole of plaintiff’s evidence relates to the theories and
suspicions in his mind as to the machinations of his real or
imagined enemies plotting for his downfall. At page 194 he
said “ When this accident happened they thought they had a
full grip and could now cause my downfall.” The impression

177

we have gained of plaintiff is that he is a hyper-sensitive,
suspicious and arrogant person, all too prone to jump to conclu-
sions and ascribe to his fellow beings the worst of motives in
their dealings with him. Apparently his success in business
has made him intolerant and self-opinionated. Many of his
expressions are indicative of his state of mind. For example :
Referring to the members of the Advisory Board — “They are
municipal dogs paid by the Council.” At a meeting at the
City Hall ; “ I told him that when my mother gave birth to
me I had nothing and that I will go back to the earth in nothing.

1 did’nt take up a pencil and paper to sell my African birthright
to a European, not me! They can beat me to death, the next
man who is going to get this company can sell it but not me,
I, as founder of that service. If the people are prepared them-
selves to kill the service they must kill it, they would only
turn round afterwards and say ‘ Ngema has sold us.’” All
through his evidence we see this unfortunate suspicion upon
which, as we shall endeavour to show, his whole case seems
to be founded. Suspicion is always an unsound foundation
on which to build. Unfortunately it seems to have played too
important a part in the determination of the case before the
Native Commissioner. As has been said by some writer:

■“ To be sure suspicion must feed upon itself and swell by what
it feeds on.”

Relevant to this suggestion of a grand conspiracy a series of
related incidents took place during the period 4th to 13th
December. 1948, concerning which adverse conclusions have
been drawn against Defendant. The bus accident occurred at
6 p.m. on Friday, 3rd December. 1948. Several Advisory
Board members, including Defendant, visited the Location
Superintendent, Mr. Cadle, at his office on Saturday morning.
4th December, to discuss the accident. These Board members,
or some of them, arranged to hold meetings in their respective
wards on Sunday morning, 5th December. Such meetings were
held. From one of them a letter dated 5th December, 1948,
was sent to Mr. Cadle. On Monday, December 6th Mr. Cadle
arranged with Mr. Carr for a meeting to be held at the City
Hall in Johannesburg at 2 p.m. on that day, at which Board
members were to be present. The meeting was held and it
was further arranged that Mr. Carr and a Police Officer should
address a meeting in the location at 6 p.m. that same night.
6th December. After seeing the Board members at 2 p.m.
Mr. Carr had an interview with plaintiff Ngema, who had
arrived. Subsequently, that night at 6 p.m. Mr. Carr held his
meeting in the location. Thereafter the Non-European Affairs
Committee of the Municipality took certain action and eyen-
tually plaintiff Ngema was asked to attend a meeting at the
City Hall on 13th December. 1948, at which representatives of
the Public Utility Corporation were present. Plaintiff was
present at this meeting. Now, in regard to this series of events
we are asked by plaintiff and Mr. Franklin to believe that all
the parties who took part were in league and were 'motivated
by a desire to cause plaintiff’s downfall, in other words, that
their motives were mala fide. What evidence is there to support
this contention? Mr. Franklin contends that it is to be gathered
from the evidence of the witnesses for plaintiff viz. Obed Kanile,
John Tjekele, Alexander Moremi, Hosias Mkhulusi, Oriel
Monogoaka and Jackson Ntenjane. Taken at its highest value
those witnesses allege that at meetings held by some of the
Board members, the members asked the public “ What is the
intention in connection with what had happened relating to
the buses?” The witness Obed alleges that Defendant said

I want you to hit those buses because they killed us and
further because we are not properly treated.” Mr. Franklin
has been fair enough to admit before us that this witness was
probably exaggerating. But none of plaintiff’s witnesses were
present at the meeting with the officials of the Municipality.
There is no direct evidence of any acts from which a conspiracy
could be inferred. The suggestion of conspiracy is based purely

178

on supposition and inferences sought to be read into the series
of events detailed above. , Plaintiff’s own interpretation is
clearly clouded by the suspicions which he entertained. Accor-
ding to him, he says that after the stoning of the buses on the
morning of the 6th December, Moremi came to him and made
a report. He thereupon went to Mr. Cadle to lay a complaint.
He complained that he had heard that the Board was respon-
sible for the strike and Mr. Cadle asked him who had told him
that. “ I told him that was a secret that I could not release.
Mr. Cadle kept quiet. I went to Mr. Fox to ask him for
advice.” “ Mr. Fox advised me that at 2 o’clock that day
some members of the Advisory Board would be in Mr. Carr’s
office in town and other European members of the Council.
He said there would be a meeting there.” Plaintiff goes on
to say he went to town and then “ I asked to see Mr. Carr
and another European asked me af I had an appointment with
Mr. Carr and I said yes. I told him I was Mr. Ngema the
owner of the Bantu bus service. He went inside to tell Mr.
Carr and Mr. Carr said ‘ Allright, bring him in.’ While I was
still making a report to Mr. Carr about what I had told Mr.
Cadle the Board members came in and sat on the chairs. I
was speaking to Mr. Carr saying one of the Board members had
come to me and told me that the strike was caused by the
Board members. Mr. Nowana asked me who had told me and
I said it was a matter far from him. Mr. Carr asked me
when I would start with my bus service again and I said
tomorrow. He said I must wait, he was going to ring up
Marshall Square first and the Chief of the Police. He rang up
and the reply was that I should not put the buses on the road.
I said I would put them on the road. I then went away leaving
the Board members there and I returned to my garage.” Then
he says he recieved a letter from Mr Carr telling him that if
he put the buses on the road he did so at his own risk. Then
he received a letter asking for the number of passengers carried
on the day before the strike. Then he was asked to attend the
meeting at the City Hall on the 13th December. This is his
version : “ I found Mr. Carr there, another European who was
from the Council and two Europeans who came from the
Public Utility. I found Jimmy Morudae of the Benefit Bus
Service .... Mr. Carr said we were opening the meeting now.
Mr. Carr then said ‘ Do you see, Mr. Ngema, how you have
suffered through those people, that they keep on destroying
your buses and that is why 1 have now called this Company,

this Company wants to assist you in your suffering. ’ After Mr.

Carr had spoken to me one man who came from the City

Hall spoke to me and told me the same things Mr. Carr had

told me. He told me I will become ruined and become bank-
rupt; he said that this Company was there to help me in my
suffering: Then one man from the Public Utility stood up and
said to me ‘ you have heard, Ngema, what we have to say,
it is for you now to tell us what you want from the bus service,
we can give you what you want for the bus service.’ He then
sat down and waited for a reply from me. I told him that
when my mother gave birth to me I had nothing and that I
will go back to the earth in nothing. I didn’t take up a pencil
and paper to sell my African birthright to a European, not me!
They can beat me to death, the next man who is going to get
this company can sell it but not me, I, as founder of that
service. If the people are prepared themselves to kill the service
they must kill it, they would only turn round afterwards and
say ‘ Ngema has sold us.’ I further said the members of the
Advisory Board will not go to the members of the public and
say to them ‘ We met Ngema to sell his buses : ’ but they will
be able to go to the members of the public and tell them
that Ngema owned the whole of this bus service and that he
sold our rights to Europeans: and I said I will not do that to
Mr. Carr. Then I sat down and Jimmy also got up and said
‘ Anybody who has committed an offence he should be brought
before the Magistrate for a conviction, not just be told to sell

179

the buses, 1 don’t agree to that, 1 support Mr. Ngema, he
cannot sell an African right:’ After that the two men who
came from the Fubhc Utility took, their bags and went off.’
Now, this is plaintiff’s own account of those occurrences. Those
are the vultures swooping on the prey. Can any reasonable
man support that contention? We fail entirely to perceive how
any conclusions adverse to Defendant could have been drawn.
Mr. Franklin has allied himself with plaintiff’s insinuations and.
as we shall point out, the Native Commissioner has also passed
unfavourable remarks against the City Council officials. It is
clear that his niind has been inlluenced in favour of plaintiff,
in our opinion without justification. The aspersions cast against
the Council officials were serious and the Native Commissioner
should have been on his guard to look for the clearest and
strongest proof in their support. Clear and strong proof is
absent. The bogey which plaintiff appears to have conjured
up seems to rest entirely on suspicion. Deductions and infe-
rences have been drawn from sources we are unable to discover.
The plaintiff and the Native Commissioner do not appear to
be cognisant of a very important principle referred to in the
case of Rex v. Blom, A.D. 1939. Therein Watermeyer,
J. A. said:

“ In reasoning by inference there are two cardinal rules
of logic which cannot be ignored: —

(1) The inference sought to be drawn must be consistent

with all the proved facts. If it is not, the inference
cannot be drawn.

(2) The proved facts should be such that they exclude

every reasonable inference from them save the one
sought to be drawn. If they do not exclude other
reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.”
We have not been able to discover any points in the evidence
given for the plaintiff from which it can reasonably be inferred
that there was a conspiracy on the part of the persons and
bodies named to undo plaintiff. The version given by Mr. Carr
who was called for defendant does not appear to have been
acccepted but has been subjected to adverse criticism by Mr.
Franklin and the Native Commissioner. Yet, to us, this ver-
sion appears to be a correct and reasonable account and it
shows that the persons concerned were endeavouring to assist
plaintiff in what they considered to be dilemma in which he
was placed. According to Mr. Carr the people were hostile to
plaintiff and his bus service as evidenced by the stoning and
their utterances at the meetings he held on 6th December, they
were clamouring for municipal buses, the Non-European affairs
Committee of the City Council considered the matter, an
approach was made to the Public Utility Corporation, and the
parties were brought together at the meeting on December
13th when their proposals were put to plaintiff. To us that
appears to have been a natural and reasonable line of action to
adopt. We can see nothing sinister in those activities. There
can be no warrant whatever to impute improper motives to
the Committee of the City Council or Mr. Carr. Yet we are
asked to hold otherwise.

Under the heading ‘ Certain significant features ” in his reasons
for judgment the Native Commissioner has these comments: —

7. “ The Public Utility Corporation became a very
interested party in this affffair but only after the rioting
had started. There is no evidence that they negotiated with
Ngema before the accidents or riots.”

We do not appreciate what is significant about this. The
Native Commissioner has no further comment and leaves us in
doubt as to what he inferred. Mr. Carr explains the presence
of the Public Utility Corporation in the affair. Was it reason-
able to reject that explanation?

180

8. “ The Defendant, Putswa, Mahase and Nowana who
were probably the most active in the whole of this affair,
all four changed their employment after the rioting com-
menced or soon thereafter, in each case being to set them-
selves up in their own employment and not for other
persons or parties.”

Presumably we are asked and expected to infer that they did
so by virtue of their share of the £6,000 alleged by Moreni to
have been offered or paid by the Public Utility Corporation.
At the time of the trial Moremi had become a shareholder in
plaintiff’s company. The actual date was 16th May, 1949.
Surely the Native Commissioner should have been on his guard
in attaching any importance to this vague statement or draw-
ing adverse conclusions.

19. “The position of Mr. Carr, the Dupty Manager of
Non-European affairs, in this matter is not quite clear.”
(The Native Commissioner then refers to the keeping of
minutes of the Advisary Board). “ Further, on the evidence
before me there is nothing to show that at any time at the
meeting of the 6th December, 1948, which Mr. Carr held
at Moroka, did he tell the people to stop the boycott. He
was only concerned with the rioting, which he referred to
as hooliganism. The plaintiff has made serious allegations
against Mr. Carr, that Mr. Carr in fact told the plaintiff
he would be ruined and that he should sell out his fleet of
buses to the Public Utility Corporation. Mr. Carr says he
might have advised the plaintiff to do so. The Plaintiff
also says, and he is supported by the defence witness
Nowana, that when he saw Mr. Carr on Monday, the 6th
December, he accused Advisory Board members of being
behind the whole opposition to his buses. Mr. Carr says
he has no recollection thereof, but admits that if such
allegation had been made he would most certainly have
investigated it. The other matter was that a public request
was made to Mr. Carr at a public meeting and the only
reply he gave to that public request, even though he had
undertaken to give the public an answer within six days,
was a telephonic conversation which he states he had with
Mrs. Hoernle, the chairman of the Moroka Native Advisory
Board. Only after several requests from the Native Com-
missioner did Mr. Carr formally write to the Moroka Native
Advisory Board. He never gave the reply of the Johannes-
burg City Council to the public at a public meeting
similar to the one at which he received the request.
Another disquieting feature is that Mr. Carr, in his official
capacity, called for figures of passengers carried, from
Ngema, to which Mr. Carr is not entitled. Such inforrna-
tion is confidential and is submitted to the Transportation
Board only.”

Again, the Native Commissioner does not state what inference
he drew from his estimation of Mr. Carr’s activities, but
obviously his mind was adversely influenced. We think the
Native Commissioner is suggesting that Mr. Carr deliberately
delayed in informing the public that Municipal buses would not
be available to make matters more difficult for plaintiff. But
that assumption hardly fits in with the proved facts of the case.
We see nothing disquieting or irregular in calling for figures of
passengers carried. If the Municipality were to consider the
introduction of municipal transport such information would be
essential for their deliberations.

We have, then, two points of view to consider, as did the
Native Commissioner. On the one hand plaintiff asks us to
believe there was this grand conspiracy against him, based,
as far as we have been able to ascertain, on his own suspicions.
On the other hand public officials have testified on behalf of
Defendant, giving an account of a course of events which, to
us, seems fair and un'oiassed and which could reasonably
reflect the actual state of affairs between the parties. We are

181

entirely at a loss to appreciate why the Native Commissioner
rejected the latter and accepted the plaintiff’s submissions with
all their inherent weaknesses. Firstly, a judicial officer should
not lightly accept the imputation of improper motives in public
officials, without the s.rongest and clearest proof. Secondly,
suspicions cannot afford proof of allegations. Thirdly, in drawing
inferences the cardinal rules of logic should not be ignored in
reasoning.

We definitely hold, therefore, that there was no grand
conspiracy against plaintiff on the part of the persons and
bodies mentioned.

Now, to revert to the issues pertinent to this case as dis-
closed in the pleadings. To prove his claim against defendant,
plaintiff was obliged to establish several things, viz. —

(1) that defendant, acting in concert with Magatso, Putswa

and others —

(2) did, at a meeting held in Jabavu Township on the 5th

December, 1948, incite and induce persons present thereat
to do certain acts alleged, and also urged such persons
to inform, incite and persuade all other users of plain-
tiff’s buses to do the same acts;

t3) that on 6th December, 1948, at Jabavu bus terminus
defendant induced and incited persons to carry out these
acts, which they did;

(4) subsequently defendant held further meetings in December,
1948, and January, 1949 when he incited and induced
people to continue with such acts.

The acts complained of were those as detailed in the opening
part of our judgment, as repeated from the summons.

Acting in Concert.

Dealing with this point the Native Commissioner in his
reasons for judgment says: —

“ 12. There is no doubt whatsoever that the plan of
action for the meetings was drawn up at the caucus meeting
on the 4th December, 1948, and Mutolo (Defendant) Mahase
and Putswa were in agreement even through Mahase
(Magatso) did not attend the caucus meeting — he saw
Mutolo soon thereafter and everything was explained to
him and he says he was in full agreement.”

The only evidence on which the Native Commissioner could
base this finding ds that of defendant and his witnesses because
there is not a title of evidence in any of the statements of
plaintiff’s witnesses referring to any acts of defendant from
which it might be inferred that he and others had agreed to act
in concert. Here, again, the Native Commissioner has drawn
conclusions entirely from inferences, which were not justified.
Defendant’s evidence is to this effect. After the bus accident
at 6 pm. on Friday, 3rd December, members of the public
approached some members of the Advisory Board and asked
them what they intended to do about the matter. On Saturday
morning the 4th several Board members went independently to
the office of the Location Superintendent, Mr. Cadle, to discuss
the bus accident with him. That is confirmed by Mr. Cadle.
In discussions between themselves those Board members arranged
or suggested that they should call meetings of the people in
their respective wards to test the feelings of the people.
Defendant himself says: “There was a caucus meeting, we

called it. I did not call it. We wrote a letter to Mr Cadle
in which we informed him that there was a loud noise by the
public and that we think there is danger, help us by speaking
to some authority dn town to come and address the meeting.
It was advised (at that caucus meeting) that we should try and
• stop people from doing anything until the Manager comes from
town to speak to them.” Meetings were held by Board members
in their wards next day, Sunday 5th December.

182

From this evidenc the only ‘ plan of action ’ which could be
inferred was the decision to try to stop the people from doing
anything until the Manager came from town to address them.
Was that decision unlawful or for an unlawful purpose? In
a paragraph of his judgment, headed “ Defendant’s motives ”,
the Native Commissioner states : “ It must be remembered too
that the calling of the caucus meetings and public meetings
by the defendants was not an unlawful act on his part. He
called such meetings within the scope of his employment.”
Mr. Franklin has suggested that defendant was a hypocrite and
was playing a double game, that he merely pretended to act
outwardly as a man of peace whereas all the time behind the
scenes or secretly he was inciting and urging the people to acts
of violence. We have searched in vain to discover any evidence
or facts from which inferences could be drawn which could
support that submission. There is ample evidence to show that
by that time the people themselves were already incensed and
hurt by the bus accident. That would have been a natural reaction.
Would it not have been the plain duty of all persons in
authority to try to calm the public feeling? Why then regard
the ‘ plan of action ’ of some Advisory Board members to meet
the public as malicious? The Native Commissioner remarks:
“ When the defendant knew of the very strong public feeling
running through the whole tovv-nship, and particularly in those
areas where people lived who had lost relatives tin the accident,
two days earlier, he should have foreseen the danger of calling
together those angry people to discuss the very matter which
caused the anger. He was culpably negligent in this regard,
because he owed a duty of care towards plaintiff and all others
by virtue of his official position, namely to maintain law and
order.” We most definitely cross swords with the Native
Commissioner. We agree that the defendant was in duty bound
to maintain law and order. He says that was the very object
in view by arranging to meet the people. Had he failed to
carry out this obvious duty by failing to act, he might have been
culpably negligent. But to say that he was culpably negligent
because he did meet them seems to us to be unsound reasoning.
We do not know what special duty of care he owed to plaintiff.
Be it remembered that at that stage plaintiff’s buses were
running normally. The whole case against defendant appears
to have been built up by inverse reasoning — from effect to
cause, not from cause to effect. Mr. Franklin has admitted
that his witnesses have nrobably formed their oninions in the
light of subsequent events and have put forward their propo-
sition thus; Because there was stoning of the buses, therefore,
someone must have told them to do so; therefore, who told
them? So. it must have been defendant because he held a
meeting. The Native Commissioner, too, appears to have
reasoned along those lines. He says; “Whether bv design

or accident the meetings held on Sunday, 5th. had the effect
of further inflaming the incensed populace and further to
organise their individual feelings of hurt and shock into one
body of dangerous opposition to the buses. The accident
happend on the Friday. On Friday, Saturday and Sunday
people boarded the buses normally and on Monday morning,
i.e. the first morning after the meetings on Sunday, trouble
started. What, therefore, caused the organised action on
Monday morning? The irresistible inference is, the meetings
on the Sunday did so. and those meetings were called by members
of the Moroka Natwe Advisory Board.” The Native Commis-
sioner talks of “ further inflaming the incensed populace ” and
“ further to organise their individual feelings.” But the only
evidence on the record states that the avowed object of the
meetings to be held on Sunday, December 5th, was to calm the
people. Whv brush this evidence aside? We are concerned at this
stage with discovering the motives of the Board members on
the allegation that they acted in concert on the Saturday to
further a ‘ plan of action ’. Their evidence is not accepted — it
is the only ev'dence — and the worst of motives is ascribed to

183

them. On what grounds? Because we are asked to believe that
defendant was playing a double game. We cannot assume that.
Plaintiff must prove it. And there was no evidence before the
Court on which the Native Commissioner could impute improper
motives to the defendant and the other Board members in
arranging on the Saturday to hold meetings next day. The
Native Commissioner has found that it was lawful for them to
hold meetings, the purpose of the meetings as disclosed by
evidence was not unlawful and the doctrine of common purpose
does therefore not apply because that doctrine applies only
when persons conspire together for an unlawful purpose.

The onus rested on plaintiff to prove that defendant and
others acted in concert for an unlawful purpose. In our
opinion plaintiff has failed entirely to do so. We consider
that the Native Commissioner erred in drawing an inference
adverse to defendant from the proved facts. We hold that
defendant and others did not act in concert for an unlawful
purpose. It follows from this that defendant cannot be held
responsible for the acts of other persons in subsequent events.

Incitement.

We pass on now to the allegation that defendant incited
people present at his meeting on Sunday, 5th December to do
the acts alleged in the summons. In this regard the question
of the credibility of witnesses will be an important factor.
The Native Commissioner has commented: “In regard to all

the evidence in general one finds that all the witnesses show a
distinct degree of partiality for the one or the other side, and
one has to be careful in accepting either version as the only
correct one of what it is portended to be. On the plaintiff’s
side we have the plaintiff and a great number of his employees
and also members of the Vigilance Committee. On the defence
side we have only the version of the various members of the
Moroka Advisory Board plus the women Lizzie whose evidence
should be ignored completely for obvious reasons, and the two
witnesses who gave evidence in regard to Magatso’s and Putswa’s
alibis. Apart from these we also have the defence witnesses
who are all officials and cannot deal with the caucus meeting
on Saturday, the 4th, and the incitement at the public meetings
of Sunday, the 5th.” As the Native Commissioner appears to
have accepted the version of plaintiff it will be necessary to
examine the evidence of his witnesses. As the Native Commis-
sioner has pointed out they have shown a distinct partiality
to their side. The reason is obvious. They are all employees of
plaintiff or members of the Vigilance Committee who, the evi-
dence shows, are not favourably disposed towards members of
the Advisory Board. There appears to be a good deal of jealousy
and friction between the latter. The witness Moremi who
spread the rumour about the £6,000 offered to the members
of the Advisory Board by the Public Utility Corporation
became a shareholder in plaintiff’s company be. ween the
time of the accident and the time of the trial. This witness
in evidence has stated that he endeavoured by means of
money and brandy or liquor to buy over members of the
Advisory Board to their side to discover the mysterious
“ Mr. X ” behind the scenes. Plaintiff himself tried to contact
Board members for the same purpose. As late as the
hearing before us he through Mr. Franklin, was prepared to
abandon his judgment of £3,900 against defendant if the latter
would inform him who this mysterious person was. We see,
therefore, that there have been very questionable forces at
work theroughout these proceedings to procure, by reward or
the subtleties of liquor or the bludgeon of a judgment, infor-
mation to sustain their cause, from the very persons they even-
tually sued. If a man's cause be just there should be no need
to resort to such practices. It may be significant, therefore,
that the chief witnesses plaintiff has called are his servants,
dependant on him for their livelihood. As the Native Commis-
sioner has remarked, one has to be careful in accepting their

184

lestimony. Yet the issues, as detailed in the summons, are
based on the word of those employees. If those allegations be
true, it IS remarkable that out of a population of 68,000 persons
plaintiff has hardly brought a single independent unbiassed
person to testify on his behalf. The evidence against defendant
Mutolo, and he is the only person with whom we are now
concerned, is that of the witnesses Obed Kanile and John Tjekele,
a dispatcher of buses and a queue policeman respectively, both
employees of plaintiff. Obed states he attended the meeting held
Jjy defendant and Magatso on Sunday 5th December. He arrived
late and was there about 15 minutes. He arrived between 2 and
3 p.m. He goes on: “When I arrived Mogatso was addressing

the meeting. I heard him ask the public what the intention was
in connection with what had happened relating to the buses.
He referred the question to all the public.” “ The reply was
that they expected action from their leaders. Magatso was
■one of the leaders. When that was said Magatso stood up and
said there was nothing further they could do — that damage be
wrought on the buses and do away with them. At this a Mr.
Mutolo stood up and seconded Magatso’s statement. When
Mutolo seconded Magatso’s motion he said his reason was that
they were badly treated and it seems that they are slaughter
houses. I did nothing further than that and the meeting was
closed and the people clapped their hands. In regard to the
people getting to work without buses, this question was discussed.
They said they would provide other conveyances. Mutolo
said that they would provide other conveyances to take the
people from Jabavu to Nancefield station.” Later in evidence,
Obed says : “ Mutoli stood up and said ‘I want you to hit those
buses because those buses kilted us and further because we
are not property treated.’ ” “ Mutolo said ‘ I agree with Magatso
in his statement that these buses should be damaged.’ At this
the people clapped their hands. Then the meeting ended.” “ I
'did not say T want you to hit those buses because we have not
:been properly treated ’ and ‘ in my opinion those buses should
be hit.’ ” When his previous statements were read out to him
’(Obed) he continued : “ The correct statement is the one which

reads ‘ I agree with Magatso that the buses be hit.’ Those arc
the correct words that he used — I am sure of that. He said
nothing after that. I did not hear Magatso say that the buses
must be hit — I only heard him express agreement with what
Mutolo said. The exact words that Magatso used at the meeting
were ‘ What do you say about the matter, about those buses
and about the accident which occurred.’ This person stood up
and said ‘ We shall hear from you.' In reply Magatso said
■‘I want those buses to be hit.’ ‘ Do not board them.’ At this
Mutolo stood up and said ‘ I agree with what Magatso has
said ’ and the people clapped their hands and dispersed.
Mutolo’s statement ended there. 7 am not sure of Mutolo's
statement.” “At this meeting that I attended it appeared that
the people were angered at the words used at the meeting.
Before those words were uttered they did not seem excited and
were quite calm. No particular people were told to stone the
buses. No dates were arranged for further meetings. The
question of the burial of the dead was not discussed. Magatso
and Mutolo were telling the inhabitants to hit the buses and
to boycott them. Quite distinctly they told the people to hit
the buses and not to board them. There were no threats made
to the people that they would be assaulted if they boarded
the buses.”

The evidence of the other witness John Tjekele, a queue
policeman, is as follows: He went to the meeting on 5th

December, Sunday, with Obed. He says: “When we arrived
the speakers were already addressing the meeting. Magatso
was addressing the meeting. I heard him say ‘ Did you notice
the accident made by Ngema’s buses? ’ Magatso further stated
that Ngema’s buses were bad and that is the reason why the
people don’t like them. He said ‘ I really do not want Ngema’s
buses.’ The people clapped their hands and cheered. He

185

further stated that the people be told on Monday that no one
board the buses. When he sat down Mutolo stood up. When
Mutolo stood up he said * 1 second the statement that has just
been made by Magatso.’ At that the people clapped. He sat
down as soon as he was finished saying that. Members of the
Advisory Board at the meeting were inciting the people to
fight. On this Sunday, (5th December) it was Mutolo arid

Magatso who incited the people to violence. Magatso said
unless the buses were stoned no one would refrain from

boa'rding them. He insited that the people should not use
the buses. Mutolo’s only word was his seconding Magatso in
that the buses should not be boarded.” Under cross-examination
he said “ When 1 got there the words I heard spoken by Magatso
were ‘ The people do not like the buses of Mr. Ngema ’. The
people clapped their hands. He also said he did not want the
buses. He said ‘ I do not want the buses.’ He also said that
the people did not want the buses as they complained that the
buses are not bringing them to the station in time and make

them late for their trains and that buses had killed people.

He then sat down and Mutolo stood up. He never spoke again —
not while I was there. Mutulo said ‘ I second what Mr. Magatso
has said.’ While I was at the meeting I did not hear anythjng
else. I did not hear any of the audience speak. When Mutolo
said those words Magatso stood up and spoke saying that he
wanted European (meaning municipal) buses. That was all he
said. I then stood up and went away. Obed and I left together
and the meeting appeared to break np.”

Now, this is the sum total of plaintiff’s evidence to support
his allegation of defendant’s incitement of the people at his
meeting on Sunday, 5th December. Not only is there a grave
contradiction between the two witnesses as to what was said
by Mutolo and Magatso, but in the cross-examination of John
Tjekele there is not a suggestion of any incitement to violence,
or stoning or even an organised boycott. Tjekele does not
confirm the fiery utterances alleged to have been made by Mutolo
by the witness Obed. Mr. Franklin has admitted that Obed was
probably exaggerating, with which we entirely agree. His
evidence can be rejected. Tjekele’s version substantially agrees
with that given by defendant. It must be remembered that
Obed and Tjekele arrived towards the end of the meeting. This
is defendant’s version. “ They (the people) were altogether
bad, they were in a fighting attitude. Once they all said ‘You
members of the Board, we can easily see that now you have
been bribed by Ngema because it is long since we have been
complaining about the buses killing us, they don’t come to a stop.’
At that time people could not easily speak about the buses in
the township there and if one did speak about it the people
looked at you. Towards the closing of the meeting one stood
up and he said he would like to know what the leaders say
we must do : before we could reply to that someone else
stood up and said ‘ What shall we do with the people going
to the buses because we told you we no longer want these
buses, we want to strike them, to take them out of the road
together with the owner of the buses,’ and I then asked
Magatso to speak. He supported what I said. I said since

you have made up your mind to strike the buses and that we,

as leaders should show you what to do, I am going to tell you:
It is better for you to walk from here to the station rather
than striking the buses and attacking the buses: it will cause
a very big trouble if you strike the buses and assault the
passengers: they did not like what I said that the buses should
not be attacked, they did not want to listen to that meeting:

I ended by saying when you leave off from here you will have
to go along the road to the station and you must not strike
them : those were my words.” Magatso said ‘ I agree with
what Mutolo has said. The station is not far. You must not
touch the buses at all, it is better for you to walk and I will
also walk.’ He did not make a long speech, the people were

creating a noise. They did not want to listen at that stage

186

because they had heard that we did not want them to strike
the buses and assault the passengers. I closed the meeting with
a last word. ‘ You have asked us to say that we should tell
you what to do, we give you this advice as your advisers :
We are giving advice: in our section we don’t want to hear
that any of you have struck the buses or assaulted any passen-
gers.’ Then 1 suggested that we should go home m order to be
able to go to work the next day and I asked them to stand up:

I then closed the meeting. Their national anthem was sung and
the meeting closed at 12.30 p.m.”

This was the kind of advice given to the people at all subse-
quent stages of events by other persons in authority and is
the sort of advice which we would expect to be given by any
responsible person in such circumstances. Yet the Native Com-
missioner has found that the defendant was culpably negligent
in this regard in holding his meeting. As we have said, we can-
not agree with the Native Commissioner in his view. It was
the duty of the defendant to maintain law and order and he
endeavoured to do so. We are satisfied that there is no evidence
to support the allegation that defendant at his meeting on
Sunday, 5th December, incited the people to acts of violence
against plaintiff’s buses or incited or encouraged them to boy-
cott the service. From the proved facts there is no warrant for
the inference drawn by the Native Commissioner that “ whether
by accident or design the meetings held on Sunday, the 5lh,
had the effect of further inflaming the incensed populace and
further to organise their individual feelings of hurt and shock
into one body of dangerous opposition to the buses.” It seems
highly improbable to us that Mutolo could have disseminated his
alleged malicious views throughout the other 24 areas comprising
a population of 68,000 persons within the short period of time
available on that Sunday afternoon. There is not a shred of
evidence that such efforts were made.

The most that can be reasonable deduced from the meetings
on Sunday, 5th December, is that the people were told : “ If you
don’t want the buses, then walk, as we shall walk.” We can see
nothing irregular or unlawful in that advice. It certainly does
not amount to incitement. Throughout the reasoning in this
case little thought appears to have been given to the effect of
the bus accident itself on the feelings of the people. Defendant
has been regarded as the author of all the trouble and plaintiff
has been held forth as the innocent victim of his evil designs. In
the nature of things the accident in itself would have stirred up
the people. They would naturally though irrationally want
to vent their feelings against the object of their anger, viz. the
buses themselves. There have been many demonstrations of
this kind in this country. It would be folly to assume that those
who endeavour to dissuade them against such acts are guilty of
incitement. Yet, such is the view taken by the Native Commis-
sioner. In our opinion in the light of all the proved facts he has
erred and we hold that defendant did not incite the people to
violence or boycott of plaintiff’s bus service.

Alleged Acts of Hostility as Detailed in Summons.

We need not examine this aspect of the case very exhaus-
tively. There is no evidence whatever that defendant incited
the public to stone the buses, nor did he incite them to assault
people who used the buses nor did he assault or himself threaten
to assault anyone so doing. Plaintiff’s own witnesses admit that
he was not present at the time of the stoning. The Native
Commissioner appears to have arrived at some similar conclu-
sion for he states in his reasons for judgment: “The Court

inclines to the view that when defendant called for a boycott he
did not contemplate the rioting which ensued. Further that
defendant tried by intimidation or persuasion to prevent ordinary
passengers from boarding the buses, and not to stone the buses.
This is borne out by the fact that defendant says he realised
that the accident on Monday was greater than the accident on
Friday. By this he means that the people went further than he

187

meant them to go. It is clear that the incitement to boycott
started the boycott on the buses. Whether there is a casual
connestion between the incitement to boycot and the resultant
public violence is a question dilicult to decide and the Court
feels that it is not necessary to go into that aspect as it is satis-
fied that incitement to boycott is an unlawful act and that such
act can found a claim for damages such as the present claim ”
It is perhaps unfortunate that the Native Commissioner did not
pursue his speculation on this casual connection further, not on
the basis of his assumption that there was in fact an incitement
to boycott, but on the actual evidence relating to the alleged
acts. We are sure that he would have found that there was no
casual connection. He has adopted the view put forward by
Mr. Franklin that the stoning was a natural and probable conse-
quence of the Sunday meeting. But the only proved facts are
that defendant warned his people not to commit acts of violence.
Where, therefore, can it be held that the stoning was the natural
consequence of his advice? Mr. Franklin has submitted that
defendant knew what was going to happen on the Monday
(6th December) and purposely got up late and prepared an alibi.
He submitted further that defendant was dissatisfied that there
was no boycott on the Saturday and deliberately went out of his
way to set the ball rolling by calling his meeting on Sunday when
the people were suffering from a sense of loss. They were
peaceful but ripe for something. Defendant set them alight.
He says defendant had no good ground on which the Board
members should hold their meetings on Sunday. We must con-
fess that we cannot fsllow Mr. Franklin’s argument because,
as we have pointed out, there is no evidence to support, or from
which we can infer, any malicous intentions or guilty mind on
the part of defendant. The evidence is not there to support his
contentions. It might be added that there is not a shred of
evidence as to the identity of any person who took part in the
stoning on Monday morning. There is uncontradicted evidence
that no person from defendant’s ward was killed or injured in the
bus accident on Friday. It can reasonably be inferred that no
person from his ward would have any personal grounds for
attacking the buses. His Sunday meeting comprised a mere hand-
ful of people compared with the total population of 68,000 in
the area. There is no evidence whatever that he or any of his
oeople took part in the stoning or assaults.

We are satisfied, therefore, that none of the alleged acts of
aggression detailed in the summons can be laid at the door of
the defendant and the plaintiff has completely failed to prove that
portion of his allegations.

Was there any Incitement to Boycott.

Faced with the difficulty we have mentioned in the preceding
section. Mr. Franklin submitted that his claim against defendant
was that contained in paragraph 4 of the summons, viz: During
the period 5th December, 1948, to 6th January, 1949, defendant
interfered with the company’s lawful conduct of the bus service
and prevented it from operating the service. He suggested that
the whole trial had been fought on the greater issue of a boycott
which could be read into the words quoted, that all the detailed
allegations relating to violence were superflous and could be
disregarded for purposes of arriving at a judgment. In other
words, having failed to establish the alleged ac s to violence
or incitement thereto he was prepared to rely on a claim arising
from boycott. On the subject of boycott the Native Commis-
sioner has expressed himself thus : “ The right to boycott a busi-
ness enterprise is the right of each individual in a democratic
country such as South Africa. Each person by personal selection
or preference can decide by what mode of transport he would
travel.” So far we shall assume he is correct. He goes on; “If
buses are dangerous and he boards them he does so at his own
risk. If a person decides not to use a particular bus he does not
harm anyone, but the moment he attempts to induce others to act
as he does then ihe harm creeps in. If he holds a position of

188

some standing among his fellowmen and is likely to be followed
by them then he must be careful. If he holds an official position
or is one in authority then he must be even more careful because
his very appointment puts him above the ordinary person and
his lead is likely to be followed by others.”

We have not been able to find any evidence that the Board
members incited the public to boycott the buses. The public
feeling was already there. That is admitted by all witnesses.

If the individuals comprising the public wished to walk then,
according to the Native Commissioner, they did no one any
harm. What further effect, therefore, could the calling of public
meetings have had? At the most it can be said that the board
members agreed with the public and expressed their agreement
at the meetings on Sunday. If people were asked to let other
persons know the result of the meeting it could be interpreted
that it was said that buses should not be boarded. There is
evidence that defendant warned his people not to stone the buses.
This bears out defendants’s statement that he told his people not
to stone and that he had his people under conrol. But keeping
to the evidence on record we cannot find anything to suggest
that he incited them to boycott. We cannot agree with the Native
Commissioner that his more official position in itself would have
acted as an impetus to the public feeling. On the Monday night
after the stoning Mr. Carr, the Duputy Manager of Non-European
Affairs and a police officer gave the same advice to the public.
And so, we verily believe, would all responsible officers.

Again, we are at a loss to understand why it is sought to hold
defendant responsible for the boycott. We can find no satis-
factory evidence to support the assumption that he incited the
public to boycott.

What was the Proximate Cause of Suspension of Bus
Service?

The Native Commissioner has stated that the public had a
perfect right not to use the buses if they did not wish to do so.
The figures supplied by plaintiff show that there was no appre-
ciable falling off in the number of passengers carried from the
time of the accident on Friday up to about 6.30 a.m. on Mon-
day morning. If there was a boycott there was no sign of its
effect. Queues were forming and passengers were being dis-
patched normally. Then suddenly stoning took place and the
service came to a standstill. Obviously then it was the actual
stoning which caused the suspension. The buses were put away
and plaintiff himself went to the Transportation Board and sought
permission to suspend the service, which was granted. In
evidence Plaintiff was asked what was his object in applying
not to run his busses. His reply is somewhat startling : “ They
were stoning the buses and I made this application for the
service to be suspended to make those people walk all the way.”
At that stage, at any rate, plaintiff was concerned not
merely with protection of his buses from further damage but
he was determined to make the public suffer for their acts of
violence. Anger is apparent there. Plaintiff does not stand
out as the meek victim of designing malefactors. He counter-
attacked himself. He did not try to carry on with his service
but himself withdrew it. He was a contributing factor in the
suspension of the service. This point may have been of further
interest had the question of the quantum of damages been a point
in issue. But it is of interest here only in determining the proxi-
mate cause of the suspension of the service. As we have seen
there was no obvious sign of the boycott on Monday morning
and it is clear that the actual stoning was the direct and proxi-
mate cause of the suspension. Was the stoning spontaneous or
was it pre-arranged? Was it the natural and probable conse-
quence of the meetings held on the Sunday morning? We ven-
ture to say that he would be a bold man to hazard an answer to
those questions. The Native Commissioner has endeavoured to-
do so by reference to other similar incidents. He has argued
that there were previous bus accidents. They were not followed

189

by caucus meetings and no violence ensued. But now, in the
case of this accident caucus meetings are held and violence
follows. Therefore, the caucus meetings must have caused the
violence. We shall not pretend to follow the Native Commis-
sioner because we think the argument is not logical nor does
it account for the vagaries in human behaviour. There is the
old saying that it is the last straw which breaks the camel’s back.
There is much evidence on this record about public complaints
against the bus services before this accident. It is probable
that their long suffering had reached breaking point. One argu-
ment has been put forward to negative the spontaneity of the
riots on the score of delay. It is suggested that the delay from
6 p.m. on Friday to 6.30 a.m. on Monday does not indicate that
the outbreak was sudden. We must remember, however, that
most of the people living in that Native township are workers at
places elsewhere and that their only and usual time for gathering
together is on Sundays. They would have been concerned with

their work on Saturday. There must have been a great deal of

talk on Sunday among the large population, apart from the
poorly attended meetings held by the Board members. It is
said that the latter had little influence at that time. We have

no direct evidence as to the general nature of public talk over

the week-end and, as we have pointed out, there were no outward
signs of a general boycott. We have shown, too, that there was
no conspiracy or incitement of the public to boycott or acts of
violence. Who, then, threw the first stone? No one knows.
Certainly there is no connection between defendant and the
stoning, according to the evidence. Was the Native Commissioner
justified in drawing the “ irresistible inference ” that the Sundav
meetings were the direct cause of the boycott? Can he justifiably
single out defendant from that large population of 68,000 and
say: “There is the man who caused the first stone to be thrown.”
Did he lose sight of the ever present hooligans? We could
suggest other factors, from which inferences other than the one
he has drawn could be drawn.

On the evidence we are satisfied that it was the stoning of the
buses which caused the suspension. We can find no evidence
to suggest that Defendant was the person who caused the stoning
either by incitement or direct intervention. We cannot hold that
the stoning was the natural and probable consequence of the
meetings held on Sunday, 5th December. It is even doubtful
whether there was a boycott, as such, as alleged in the summons.

The evidence of subsequent events and meetings takes the matter
no further. Other public officials and bodies intervened in an
effort to settle the trouble and defendant, if he played any part
at all, became a very minor factor. There is nothing to support
the suggestion of common purpose or a course of conduct. The
evidence shows that after the first outbreak public hostility was
directed at all forms of transport, including taxis and motor
vehicles of private and official persons. Obviously a section of
the public was out for mischief and they did not discriminate.
It has been suggested that defendant was guilty because he took
no steps to “ put out the fire.” But what could he have done
when the matter had passed into the control of other authorities.

We have endeavoured to view the events in this case in their
proper order of sequence and to consider the evidence relating
to those events. The Native Commissioner says ; “ Leaving
out all contradictions and inconsistencies one finds an overall
weight of evidence that the plaintiff’s version of the facts fits
into the sequence of events more readily than that of the defen-
dant. The Court, therefore, accepts the fact that incitement did
take place and that defendant Mutolo was probably the chief
instigator thereof.” The plaintiff’s “ version ” was that there was
a grand conspiracy against him on the part of the Municipality
and their high officers, the members of the Advisory Board and the
Public Utility Corporation. As the Native Commissioner has
stated, that is a most serious submission. In the first place it
would be highly improbable and secondly one would demand and

190

expect the clearest of evidence to support it. One would not
lightly accept the opinions of interested parties but such unfor-
tunately appears to have been the case. Inferences have been
drawn to a large extent to fit in with the theory propounded by
plaintiff. This reasoning by inference has played a dominant
part in the determination of the claim and the arguments put
before us. In our opinion it has caused the Native Commissioner
to err in his judgment. He has assigned to the proved facts
implications which they could not reasonably bear and taking
them altogether he has arrived at a conclusion which is mani-
festly wrong. The conduct of the defendant throughout these
proceedings as disclosed in the evidence has been such as we
would expect to find in the normal course of human activity. On
the whole we have no hesitation in stating that the Native
Commissioner should not have accepted the highly improbable
version of events as propounded by plaintiff and, had he assessed
the evidence at its true value, he could not reasonably have given
judgment in favour of plaintiff.

We have the impression that Mr. Franklin has realised the
weakness of his case as circumscribed by the particulars of his
claim. There is no evidence whatever to support those allegations
of violence. He argued that those detailed allegations could be
regarded as superfluous. He has now under date 21st November,
1951, after the hearing of the appeal before us has been closed
and during the course of our deliberations, made formal appli-
cation for amendment of the summons to read, at the end of
paragraph 4: —

“ Alternatively by inducing and inciting persons to boy-
cott and not to use the said bus service and to inform others
to partake in such boycott and interfere with the Company’s
trade.”

No application to this effect was made to the trial Court and
we see no good purpose to admit it now. Even were we to allow
the amendant it would not, because of the view which we have
taken of this case, help his cause in any way. We have found
that defendant did not induce or incite people to boycott the bus
service.

The appeal is allowed with costs and the judgment of the
Native Commissioner is altered to read :

For defendant with costs.

Stafford (Member); I Concur.

Austin (Member): I Concur.

For appellant: In person.

For respondent: Mr. E. Franklin of Messers. Emanuel Cluck-
mann, Franklin and Widman, Attorneys, P.O. Box 1744, Johan-
nesburg.

SOUTHERN

NATIVE APPEAL COURT.

LENGESI AND OTHERS v. KWINANA AND ANOTHER.
N.A.C. CASE No. 29/52.

Kingwillamstown : 21st July 1952. Before Steenkamp, Acting
President; Blakeway and Fenix, Members.

LAW OF PROCEDURE.

Practice and Procedure — Appeals — Appeal to Appellate Division.
Summary: On appeal from a Native Commissioner’s Court,

the Native Appeal Court reversed the judgment of the lower
Court, granting plaintiffs an amount of £80 damages for
defamation against six defendants.

191

Held: That the amount in dispute is trivial as compared to
the costs that might be incurred in bringing the matter
before the Appellate Division.

Held further: That the matter is not one which can affect
the status or reputation of the applicants.

Cases referred to: —

Maine v. Podlashuc and Nicholson, 1933, A.D. 104.

Application for consent to apply for leave to appeal to the
Appellate Division against the reversal on appeal by the
Native Appeal Court of a judgment of the Native Commis-
sioner’s Court, East London.

Steenkamp (Acting President), delivering the judgment of the
Court : —

This is an application for leave to appeal to the Appellate
Division of the Supreme Court.

In his argument before this Court Counsel for applicants
based his application on the following grounds; —

1. That the Native Appeal Court erred in finding that the

words complained of are defamatory either in their
primary signification or in the special circumstances of
their publication.

2. That the applicants’ plea of fair comment should have

been upheld.

3. That the question of damages is grossly excessive and

4. That the evidence of witnesses as to how they understood

the words complained of should not have been admitted.

In the case of Maine v. Podlashuc and Nicholson (1933 A.D.
104) one of the essentials influencing a Court in granting leave,
was laid down as being the importance of the matter to one
or other or both of the parties concerned. There are other
essentials, one being whether the amount in dispute is trivial
as compared to the costs that might be incurred in bringing
the matter before the Appellate Division.

The Native Appeal Court awarded to the two plaintiffs a
gross amount of £80 damages. This amount is payable by the
six defendants and if we take into consideration that each
defendant (i.e. each applicant) will only have to pay just over
£13, then there can be no doubt that in relation to the costs the
amount concerned is trivial.

Although the Court is of the opinion that the amount is
trivial, it still has to decide whether notwithstanding this the
status, reputation or real importance of the matter to the parties
are such that leave should be granted.

While the matter is of real importance to and can affect the
status or reputation of the respondents those considerations do
not apply to the applicants whose status and reputation cannot
be affected by the reversal of the judgment.

The application is therefore refused with costs.

For Applicants: Mr. W. M. Tsotsi, Lady Frere.

Respondents : In default.

SOUTHERN

NATIVE APPEAL COURT.

MPENDU V. MFAXA.

N.A.C. CASE No. 30/52.

Kingwillumstown: 21st July, 1952. Before Steenkamp, Acting
President, Blakeway and Fenix, Members of the Court.

LAW OF THINGS.

Ejectment — Stand in Municipal Location — Lessor acquired full
rights to stand and buildings thereon — Ejectment cannot be
resisted — Right of MunicipaUty.

192

.Summary: Plaintiff sued defendant for an order of ejectment
from a room she is occupying in a Municipal Location
in East London. The defendant’s plea is that plaintiff is
not the rightful owner of the premises and that the notice
was of no force and effect. The Native Commissioner
gave judgment in favour of plaintiff and appellant has
appealed.

Held: (1) That the ejectment cannot be resisted.

Held: (2) that the lessor acquired full rights to the stand and
premises thereon.

Held: (3) That the Municipality has the right to lease the
site to any person of whom it approves once the previous
lease is terminated.

'Cases referred to; —

Mkwali V. Mkwali, 1943, N.A.C., (C. & O.), 64.

Dhlamini v. Kortman, 1938, N.A.C., (T. & N.), 125.

Appeal from the Court of Native Commissioner, East London.

Steenkamp (Acting President) delivering the judgment of the
■Court : —

In the Native Commissioner’s Court, East London, the plaintiff
(now respondent) sued the defendant (now appellant) for an
order of ejectment from a room she is occupying in a house
situated on Hut Site 1312, Mbola Street, East London.

In his summons plaintiff avers that he is the owner of the
premises and that he duly gave defendant notice in accordance
with law to vacate the premises on or before the 31st December,
1951, by reason of the fact that defendant had paid no rental.

Defendant’s plea is to the effect that plaintiff is not the
rightful owner of the premises and that the property belongs
to one Peter Mtendeni, who is the rightful owner and with
whose consent she is occupying the property. She further
alleges that as plaintiff is not the rightful owner, the notice to
vacate is of no force and effect.

The evidence adduced was confined to the question of
ownership of the house.

The Assistant Native Commissioner gave judgment in favour
of plaintiff for an order ejecting defendant on or before the
31st March, 1952. Defendant to pay costs.

An appeal has been lodged to this Court on the following
grounds : —

1. That the Assistant Native Commissioner erred in holding

that the Municipality did not tacitly agree to lease the
site to Peter Mtendeni.

2. That the Assistant Native Commissioner erred in holding

that the Municipality was entitled to lease the site to
another person.

3. That the Assistant Native Commissioner erred in granting
a judgment for plaintiff.

The appellant filed additional grounds of appeal on the day
of hearing. These are not new grounds but really an amplifi-
cation of the grounds already filed and will be treated by this
Court as a written argument.

From the evidence it transpires that at one time the hut site
at 1312 Mbola Street was registered in the name of Wilfred
Mtendeni. He was recognised as the lessor and occupier of
the buildings on the site. On the 2nd December, 1949, the hut
and buildings were transferred from the Estate of Hardy
Wilfred Mtendeni to Abel Tembu Mtongana.

The transfer to Abel Tembu Mtongana, according to the
Superintendent of the Municipal Location was effected on
letters of administration from the Master of the Supreme Court
'dated the 12th April. 1948.

193

On the 30th October, 1950, the site was transferred front
A. T. Mtongana to Oswald Ben Mazwi and on the 16th May,
1951, to Redvers M. Mfaxa, the present plaintiff, in whose
name the property is presently registered and who is regarded
as the owner of the property.

It is alleged by the defence that the Wilfred Mtcndeni in
whose name the property was originally registered did not have
the name “ Hardy ” but that he had a brother by the name
of “ Hardy Wilson Ngwane

Both “ Wilfred Mtendeni ” and “ Hardy Wilson ” are dead.

There is filed of record a photostat copy of a last will and
testament executed on the 19th December, 1946, by W. Hardy
Wilfred Mtendeni. In this will he appointed his sister, Linda
Mtendeni as sole heiress to the whole of his estate and effects.
She was also appointed Executrix. The testator died on the
6th January, 1947, at Grahamstown and there is evidence that
aher his death, the site rents were paid by a lawyer. In
pursuance of the will made, the property in question was trans-
ferred as already mentioned.

It is further alleged by the defence that the Wilfred Mtendeni,
in whose name the property was first registered, was a minor
at the time, and that he died when still a child.

The father of these two persons concerned gave evidence for
the defence and he states the names of his two sons were
Wilfred, whose other names were Charles Lulame, the younger
and Wilson Hardy Ngwane, the elder. He also states that when
he acquired the right to the site he purposely had it registered
in the name of Wilfred, who was the younger son, and he wanted
this son, who will not inherit anything else, to have the property.
This witness admits that he did not take steps to have the
property placed into his name after Wilfred died during 1929,
as he knew the property belonged to him. There is a suggestion
in the evidence that the Will already referred to was a forgery.

The beneficiary under the Will was not called as a witness
and the impression one gains from the evidence as a whole,
is that there is a dispute in the Mtendeni family concerning
the succession to the property. Peter, the father, admits he gave
evidence at East London in Court in connection with the
property. Whatever dispute there might be, and whatever decep-
tive methods might have been employed by the Testator, the
beneficiary Linda, and other persons, the fact remains that the
plaintiff is the registered occupier of the property, having
acquired it by purchase and transfer and therefore the defendant
who really bases her defence on a dispute existing amongst the
members of the family, cannot resist the ejectment, even if
that dispute is decided favourably in an action brought before a
competent Court to invalidate the Will.

To deal with the grounds of appeal;

In numerous decisions of the Native Appeal Courts inter alia
John Mkwali v. Hennoth Mkwali 1943 N.A.C., (C.O.), 64
which was a case from East London, the principles governing
the occupation of municipal sites have been set forth.

From that decision it is clear that such a site is the property
of the Municipality, the holder of the site permit being merely
a lessee, and that the structures affixed to the soil are immova-
bles, the legal right of ownership vesting in the Municipality.
The site or site permit is not a right capable of sale and
transfer except with prior consent of the Dominus (Municipality).

Section 10 of the location regulations contained in Provincial
Notice No. 217 of 1928 d.d. 28/6/1928 as amended provides
that : “ No site permit or residential permit shall be transferred
and no site or dwelling shall be sub-let, except with the written
permission of the Superintendent and to a person approved
by him ”.

194

There is no evidence to indicate that the Municipality was ever
aware of the existence of Peter Mtendeni let alone that it
approved in any way of him as a tennant and in view of the
statutory requirement that permission must be in writing there
can be no question of a tacit agreement by the Municipality.

With regard to the second ground of appeal, the Municipality
as the Dominus clearly has the right to lease the site to any
person of whom it approves once the previous lease has been
terminated. The previous lease was between the Municipality
and Wilfred Mtendeni and the right to the stand was personal
to the holder (Alfred Dhlamini v. Kortman Kunene 1938,
N.A.C., (N. & T.), at p. 125. On Wilfred’s death therefore
the lease terminated and the Municipality was in a position to
enter into a valid lease with some other person of whom it
approved. The new lessor acquired all rights to the stand and
the buildings thereon and cannot be disturbed in his possession
by any third party, whatever rights the third party may have
as against the Dominus of other parties.

The decision given by the Assistant Native Commissioner
is therefore correct and the appeal is dismissed with costs.

For Appellant: In person.

For Respondent: In default.

NORTH EASTERN
NATIVE APPEAL COURT.

MKIZE V. MKIZE.

N.A.C. Case No. 27 of 1952.

Pietermaritzburg: 16th July, 1952. Before Balk, Acting

President; Bridle and Oftebro, Members of the Court.

LAW OE PROCEDURE.

Practice and Procedure — Appeal from Chief's Court — Condona-
tion of late noting — Application for condonation to be
preceding or accompanied by notice of appeal — Costs of appeal.
Summary: A native commissioner refused an application

for condonation of late noting of appeal as the reason for
the delay was not supported by the evidence.

Held: That although this Court agrees that the reason given

for the delay in noting the appeal was not supported by
the evidence, that does not dispose of the matter as the
merits of the applicant’s case in the Chief’s Court also
fall to be considered.

Held further: That, as respondent could well have abandoned
the judgment in his favour and did not do so but opposed
the appeal, and as the sole question on appeal to this Court
is whether the Native Commissioner should have condoned
the late noting of the appeal to his Court, appellant should
be awarded costs of appeal.

Held further: That as it is not incumbent on the chief
concerned to furnish his reasons for judgment until an
appeal has been noted against it, and the fact that it is
highly desTable that those reasons should have been fur-
nished before an application was made, must be again
emphasised.

Cases referred to: —

Lekhetha v. Toane, 1946, N.A.C. (C. & O.), 22.

Gezane v. Gabuza, 1946 N.A.C. (T. & N.), 100.

Mbele v. Mbanjwa, 1947 N.A.C. (T. & N.) 89.

195

Meer Leather Works Co. v. African sole Leather Works
(Pty.), Ltd., 1948 (1), S.A. 321 (T.P.D.).

Appeal from the Court of the Native Commissioner, Weenen.

Balk (Acting President): —

This is an appeal against a Native Commissioner’s refusal to
entertain an application for condonation of the late noting
of an appeal from the judgment of a Chief’s Court.

The reason given by the applicant (present appellant) for
the delay in noting the appeal against the Chief’s judgment,
viz., that that judgment first came to his knowledge when the
Chief’s messenger came to make an attachment thereunder,
is not supported by the evidence, and 1 therefore agree with
the Native Commissioner that the applicant cannot succeed
on that ground. But this does not dispose of the matter,
since the merits of the applicant’s case in the Chief’s Court
also fall to be considered [Lekhetha v. Toane, 1946, N.A.C.
(C. & O.), 22; Qina’s case referred to therein, and Gezane v.
Gabuza, 1946, N.A.C. (T. & N.), 100].

It emerges from the evidence that at least two of the eleven
head of lobolo cattle for which the Chief’s Court gave judgment
in favour of the plaintiff (now respondent) are still in the
possession of the payer of that lobolo, viz., Mdinga Meunu.
It follows that Mdinga and not the defendant (present appellant),
who merely acted as an agent in the lobolo transaction concerned,
is responsible for the payment of those two head of cattle
to the person entitled to receive the lobolo in question. It is
true that it also emerges from the evidence that the defendant
intimated in the Chief’s Court that he would give the plaintiff
the eleven head of cattle, but obviously in so far as the two
head of cattle referred to above were concerned, his statement
could have meant no more than that he would hand them
over to the plaintiff when he received them from Mdinga.

The judgment of the Chief’s Court therefore appears to be
manifestly unjust and the application for condonation of the
late noting of the appeal ought to have been granted.

A further aspect remains to be dealt with, viz., the appel-
lant’s omission to note an appeal against the judgment of
the Chief’s Court. The noting of such appeal forms part and
parcel of the approved practice in applications of the nature
in question [Mbhele v. Mbanjwa, 1947, N.A.C. (T. & N.) 89],
and although it was not done in this instance, this omission
has not proved fatal, as the particulars required in terms of
Rule 7 of the Old Rules for Chiefs Courts published under
Government Notice No. 2255 of 1928. as amended, which
still apply in this case, have been furnished.

The necessity for observing the approved practice referred
to above must, however be again emphasised, since even under
the new Rules for Chiefs’ Courts, published under Government
Notice No. 2885 of 1951, it is not incumbent on the Chief
concerned to furnish his reasons for judgment until an appeal
has been noted against it and it is highly desirable that those
reasons should have been furnished before an application for
the necessary extension of time to validate the late noting of
the appeal is heard, as they assist in determining whether or
not the Chief’s decision is contrary to law or manifestly unjust.

Counsel for respondent contended that if the appeal succeeded,
the appellant should not be awarded the costs thereof as no good
reason had been given by him for the delay in noting the
appeal to the Native Commissioner’s Court. The respondent
could, however, well have abandoned the judgment given in
his favour in that Court. He did not do so but opposed the
appeal. That being so and as the sole question on appeal to
this Court is whether the Native Commissioner should have
condoned the late noting of the appeal to his Court, 1 am of

196

■opinion that the ordinary rule should prevail and that the
appellant should be awarded the costs of appeal. [Meer
Leather Works Co. v. African Sole and Leather Works (Pty.),
Ltd., 1948 (1) S.A. 321 (T.P.D.) at pages 327 and 328].

It should be added that according to the Native Commissioner’s
notes of the proceedings the point on which the appeal to this
Court succeeds was taken in the Court a quo.

In the result the appeal should, in my view, be allowed
with costs and the Native Commissioner’s judgment should be
altered to read: —

“ Application granted. Applicant allowed until the
15th August, 1952, within which to note his appeal against
‘he Chief’s judgment in question. Applicant to pay the
costs of the application ”.

Bridle (Member): I concur.

Oftebro (Member) : I concur.

For Appellant: Adv. O. A. Croft-Lever, instructed by

Mr. J. M. K. Chadwick.

For Respondent: Adv. J. A. Meachin, instructed by

Mr. A. M. Buchan.

NORTH EASTERN
NATIVE APPEAL COURT.

CEBEKULU V. SHANDU.

N.A.C. CASE No. 29/52.

Mtubatuba: 22nd July, 1952. Before Balk, Acting President.

Ashton and Craig, Members of the Court.

NATIVE CUSTOM.

Contract — Exchange — Delivery — Pointing out cattle.

Practice and Procedure — Onus, on pleadings, resting on defen-
dant— Failure to discharge such onus.

Summary: Plaintiff sued defendant for delivery of two head
of cattle, being balance due under a contract of exchange.
Defendant had pointed out two head of cattle to plaintiff
but the cattle were found to be the property of another.

Held: That as defendant could not confer on the plaintiff a
better title to the cattle than he himself possessed, the
pointing out of those cattle by defendant to plaintiff
constituted an imperfect delivery.

Held further: That, as on the pleadings, the onus of proving
discharge of all his obligations under the contract, rested
on defendant, and as he had failed to discharge such onus,
plaintiff was entitled to judgment on his claim.

Statutes referred to: Section twelve of Act No. 38 of 1927.

Appeal from the Court of Native Commissioner, Empangeni.

Balk (Acting President): —

This is an appeal from the judgment of a Native Commis-
sioner’s Court reversing on appeal the judgment given by a
Chief’s Court in favour of the plaintiff (present appellant) for
the two head of cattle claimed by him from the defendant
(now respondent), and costs.

The two head of cattle in question were claimed by the
plaintiff in the Chief’s Court as “ being balance of cattle
exchanged with defendant ”.

197

The claim, as elaborated in the Native Commissioner’s
Court, and the plea in that Court, read as follows: —

“ Claim: Two head of cattle — balance of six 1 exchanged
with defendant, he only gave me four.

Pica: That six head were pointed out to pladntilT who
accepted them and re-sisaed them in the respective
kraals

The grounds of appeal are: —

“ 1. That the judgment is against the evidence and the
weight of the evidence.

2. That the learned Native Commissioner erred in holding
if he did so hold that the plaintitf’s claim was not for
two specific head of cattle or otherwise if he correctly
held that the claim was not for two specific head of
cattle, erred in holding that the plaintiff was not entitled
to a judgment in spite of the fact that the defendant
had failed to tender delivery or payment before commen-
cing legal proceedings.

That the learned Native Commissioner erred in holding
that the pointing out by the defendant of the two head
of cattle was a complete discharge of the defendant’s
obligation and that there was no obligation on the defen-
dant to guarantee to the plaintiff free and undisturbed
possession of such cattle.

4. That the learned Native Commissioner took no account
of the evidence led to the effect that it was on the
defendant’s orders that the two head of cattle in question
were held back from the plaintiff when he attemped
to move them

The facts of this case emerge from the presiding Native
Commissioner’s reasons for judgment which are appended: —

“Facts found proved:

Plaintiff effected an exchange with defendant of six head
of cattle. At that time one Samuel Biyela owed defendant
six head of cattle. Plaintiff and defendant went to the
kraal of Christiaan Biyela where samuel Biyela had four
head of cattle. Plaintiff states that at this kraal two head
of cattle were pointed out and that they both went to other
kraals where two more were pointed out. They then went
to the kraal of Macansana for the other two head but it
is common cause that no cattle were pointed out in this
kraal. Plaintiff then states that they returned to Christiaan’s
kraal where defendant pointed out two head of cattle on
the grazing field and that neither Christiaan nor Samuel
Biyela were present. It is common cause that these two
head were also the property of Samuel Biyela. The two
head pointed out at Christiaan’s kraal were duly delivered
to plaintiff but delivery was refused of the last two head
of cattle.

Plaintiff advised defendant that he could not get delivery
and defendant took no action in the matter. Plaintiff then
sued Samuel in a Chief’s Court for the delivery of the
two head of cattle and defendant gave evidence on has
behalf but he was unsuccessful in his action; no appeal
was lodged against this decision.

Reasons for judgment: —

“ It is clear that the two head of cattle were pointed out by
defendant to plaintiff in exchange for two head of the
latter’s cattle which were accepted by defendant. In
Native law this pointing out constituted the passing of
ownership and the risk passed to plaintiff. Plaintiff could
vindicate his cattle from whoever had possession of them.
According to his own evidence he left the two head on,

198

the grazing fields without any arrangements for their safety.
Normally the seller would hold the animals as agent for
the purchaser but plaintiff was well aware that these were
not defendant’s grazing fields and the cattle were most
probably with those of Christiaan Biyela, and it is the
latter who refused to give delivery of the cattle.

Plaintiff cannot sue defendant for the delivery of these
animals as defendant had already delivered them to plaintiff,
unless he can prove that defendant stole these animals or
had no right to dispose of them. The appeal is allowed
with costs and the Chiefs judgment is altered to read —
judgment for defendant with costs ”.

It must be added that the defendant does not dispute the
plaintiff’s evidence that the latter delivered the six head of
cattle due to him (defendant) under the contract of exchange
in question and that he (plaintiff) has thus fulfilled his obligations
under that contract.

It is common cause that the plaintiff failed in his vindicatory
action in the Chiefs Court for the recovery of the two head
of cattle in dispute (hereinafter referred to as “ the cattle ”)
from Samuel Biyela who, as properly found by the Native
Commissioner on the evidence, was the owner of the cattle.
As also properly found by the Native Commissioner on the
evidence, neither Samuel Biyela nor his brother, Christiaan
Biyela, were present when the defendant pointed out the cattle
to the plaintiff. Samuel Biyela denied in his evidence for the
defendant that he delivered the cattle to the defendant or that
he authorised the defendant to deliver them to the plaintiff.
The plaintiff’s evidence tend to indicate that Samuel Biyela
did authorise the defendant to deliver the cattle to the plaintiff
or at least that the plaintiff believed that to have been the case,
but the obviously unreliable evidence of the defendant regarding
this aspect leaves the matter inconclusive. It follows that the
evidence cannot be said to establish that the dominium in the
cattle passed from Samuel Biyela and accordingly the Native
Commissioner appears to have erred in holding that the pointing
out of the cattle by the defendant to the plaintiff passed
ownership therein to the latter, as the former could obviously
not confer on the latter a better title than he himself possessed.

It seems clear to me from the revelant record and was in
fact found by the Native Commissioner, that what the plaintiff
claimed an the instant action was the two specific head of
cattle pointed out to him by the defendant and not any two
head of cattle. It also seems clear to me that

(a) the evidence as a whole establishes that it was agreed

upon between the plaintiff and the defendant that the
cattle, i.e. the two specific head, were to form part and
percel of the contract of exchange in question; and

(b) the evidence does not support a finding that the plaintiff
agreed to accept any other cattle in lieu of the two
specific head.

Had the common law been applicable in deciding this case,
it may well be that, as contended in the third ground of
appeal, the correct approach would have been from the angle
of warranty against eviction which also applies to contracts
of exchange, see Mackeurtan on Sale (Third Edition) at page
26 and pages 186 to 188.

The plaintiff’s unsuccessful vindicatory action in the Chief’s
Court against Samuel Biyela and what is limplied in the latter’s
defence in that action, as disclosed by the evidence in the instant
case, viz., that he, Samuel Biyela, had neither delivered the
cattle to the defendant nor authorised him to deliver them to the
plaintiff, indicate clearly that the plaintiff was evicted owing to
a flaw in the defendant’s title to the cattle, see Mackeurtan on
Sale (Third Edition) pages 189' ct seq.

199

The evidence in the present case does not disclose whether
or not the plaintiff noted an appeal against the Chief’s judgment
in the action in which he unsuccesfully sued Samuel Biyela for
the cattle. But even assuming that the plaintiff did not note
an appeal against that judgment, it seems to me that he was not
obliged to do so as it is manifest from the evidence in the instant
case that he gave the defendant due notice of his action against
Samuel Biyela and there is nothing in that evidence to indicate
that the defendant, who was present and gave evidence for the
plaintiff in the latter’s case against Samuel Biyela, advised the
plaintiff to appeal against the judgment therein; and for the
reasons given earlier in this judgment, it , seems to me that the
plaintiff had no reasonable prospect of success on appeal. It
follows that the eviction was due to no fault of the plaintiff
and that under common law he would have been entitled to
judgment against the defendant, see Mackeurtan on Sale (Third
Edition) pages 191 et sea. But as the present case emanated
from a Chief’s Court in which the jurisdiction is restricted to
the determination of Native civil claims arising out of Native
law and custom, see section twelve of the Native Adminis-
tration Act, 1927, it obviously had to be decided according to
that system of law, under which contracts of exchange are
recognised, see Stafford’s Principles of Native Law at page 271.

As pointed out earlier in this judgment, the evidence in the
instant case does not establish that the dominium in the cattle
passed from Samuel Biyela, and therefore the pointing out of
the cattle by the defendant to the plaintiff obviously constituted
an imperfect delivery. That being so the defendant has failed
to discharge the onus of proof resting on him on the pleadings,
and as the plaintiff has proved that he discharged his obligations
to the defendant under the contract of exchange in question in
full, he is entitled to judgment on his claim; and as the defendant
made no proper tender, the plaintiff is entitled to costs.

Since a decree of specific performance would obviously be
valueless in the present action, and as a Court in such a case
may ex proprio motii give damages as an alternative, see
Mackeurtan on Sale (Third Edition), pages 386 to 388, it seems
to me that the latter course should have been adopted in the
Courts below.

The plaintiff in his evidence states that the value of the cattle
was £22, whereas the defendant in his testimony gives their
value at £18. It seems to me that the mean, viz., £20, would
be a fair value and this was conceded by counsel for both
parties.

In the result I am of the opinion that the appeal should be
allowed with costs and that the Native Commissioner’s judgment
should be altered to read: —

“The appeal is dismissed with costs, but the Chief’s
judgment is altered from one for the plaintiff for two head
of cattle with costs to one for the plaintiff for £20 with
costs ”,

Ashton (Member): I concur.

Craig (Member): I concur.

For Appellant : Mr. W. E. White of Eshowe.
Respondent: Mr. G. D. E. Davidson of Empangeni.

200

NORTH EASTERN
NATIVE APPEAL COURT.

JIYANE V. MTHEMBU.

N.A.C. CASE No. 31/52.

Mtubatuba: 22nd July, 1952. Before Balk Acting President.

Ashton and Craig, Members of the Court.

COMMON LAW.

Interpleader — Cattle attached at kraal of judgment debtor —

Presumption raised that he is owner — Clear and satisfactory

evidence required to rebut that presumption.

Practice and Procedure — Revelant warrants of execution to

accompany record of proceedings.

Summary: Cattle, attached at kraal of judgment debtor, were
claimed by appellant.

Held: That as there is a material discrepancy in the evidence
tendered for the claimant, the necessary clear and satis-
factory evidence to rebut the presumption raised as to
ownership was lacking.

Held further: That it is essential for the proper determination
of interpleader actions on appeal that the relative warrants
of execution should accompany the record of proceedings.

Cases referred to: —

Zandberg v. van Zyl, 1910, A.D., 302.

Appeal from the Court of the Native Commissioner,.
Empangeni.

Balk (Acting President): —

This is an appeal from the judgment of a Native Commissioner’s
Court in an interpleader action in which it declared certain four
head of cattle to be executable. The grounds of appeal are: —
“ 1. The judgment is against the weight of evidence;

2. The presumption of ownership operating in favour of
the respondent was rebutted by the evidence adduced
for and on behalf of the appellant.”

It is common cause that the cattle were attached at the
kraal of the judgment deb or (Ntukuteli Jiyane), which raised a
presumption that he was their owner, and it was incumbent
on the claimant (present appellant) to rebut that presumption
by clear and satisfactory evidence to entitle him to succeed in
his action (Zandberg v. van Zyl, 1910, A.D.,302).

There is a material discrepancy between the evidence of the
claimant and that of his witness, Ntukuteli Jiyane (judgment
debtor), on an important aspect of the case, viz., as regards
the alleged acquisition of the cattle by the claimant. The latter
stated that the widow of the late Mpikinini, whose heir he is,
sold the meat of the late Mpikinini’s cattle as soon as they died
and that with the proceeds thereof, she had the judgment debtor,
at whose kraal she lived, purchase the cattle at present in dispute;
whereas, according to Ntukuteli, he sold two of the late
Mpikinini's bullocks, and with the proceeds, purchased the two
cows which, with their two calves, form the subject matter of
the instant action. Then there is the evidence for the judgment
creditor, given by the judgment debtor’s cousin, that all of the
late Mpikinini’s cattle which were removed to the judgment
debtor’s kraal, were slaughtered.

I am therefore of opinion that the grounds of appeal have-
not been substantiated and that the appeal should accordingly
be dismissed with costs.

201

A further matter calls for comment. The relevant warrants
•of execution did not accompany the record of the proceedings
in this case. The Cleric of the Court a quo states that they
have been mislaid and cannot be traced. It should be impressed
upon the officer responsible that every precaution should be
taken to ensure that the relevant warrants of execution accom-
pany the records of the proceedings in interpleader actions on
appeal, as those warrants are often essential for the proper
determination of the appeals.

Ashton (Member): I concur.

Craig (Member): I concur.

For Appellant: Mr. G. D. E. Davidson of Eshowe.

Respondent in default.

NORTH EASTERN
NATIVE APPEAL COURT.

MNYANDU V. ZULU,

N.A.C. Case No. 32 of 1952.

Durban: 28th July, 1952. Before Balk, Acting President;

Leibbrandt, and Wessels, Members.

COMMON LAW.

Defamation — Damages — Words used actionable per se, and their

mere use gave rise to a presumption of malice.

Practice and Procedure: Costs, where wrong judgment resulted

solely from the trial Court having acted mero motu.

Summary: Plaintiff sued defendant for damages for defama-
tion . The presiding Additional Native Commissioner, at
the close of plaintiff’s case, mero motu and without hear-
ing the defendant, entered judgment for the latter with costs.

Held: That as the words complained of were actionable per se
and their mere use gave rise to a presumption of malice,
which in the circumstances has not been rebutted, and as
there has been no public retraction and apology in terms
of the first proviso to Section 132 (2) of the Natal Code
of Native Law, the appeal should succeed.

Held: Further that as neither party was responsible for the
wrong judgment, as it resulted solely from the Additional
Native Commissioner having acted mero motu and as the
position could not have been cured by the defendant’s
abandoning the judgment, the Court ordered that costs
already incurred in the Court below and costs of appeal
be costs in the cause.

Gases Referred to: —

Wiggill V. Gqangasholo, 1909, E.D.C., 237.

Mtalane v. Ngcobo, 1941, N.A.C. (T. & N.), 26.

Fischer v. Pieterse, 1952 (2), S.A. 488 (S.W.A.).

Statutes, etc., referred to: —

Section 132 (2) of Proclamation No. 168 of 1932.

Rule 17 published under Government Notice No. 2887 of
1951.

Appeal from the Court of the Native Commissioner, Durban.

Balk (Acting President): —

This is an appeal from a judgment given by a Native Com-
missioner’s Court for the defendant (now respondent) in an action
in which he was sued by the plaintiff (present appellant) for
damages for defamation.

202

The defendant in his plea in the Court a quo denied having
used the sladerous words which form the subject of this action.

At the close of the plaintiffs case, the Court a quo, mero motu,
and without hearing the defendant, entered judgment for the
latter with costs.

The ground of appeal is that “ the Native Commissioner
was wrong in holding that the word ‘ Prostitute ’ was used
under circumstances that did not amount to defamation

The presiding Additional Native Commissioner in the Court
a quo states in his reasons for judgment that he found as a
fact that defendant had called the plaintiff a prostitute in the
course of a quarrel and that in the circumstances the words
complained of were not defamatory but constituted mere vulgar
abuse.

The only evidence in regard to the quarrel between the
parties is that their voices were raised in anger. There is no
evidence whatsoever to show that the plaintiff made use of
any words or expressions or that her conduct was otherwise
such as could have provoked the words complained of. Those
words, i.e. that the plaintiff was a prostitute, were actionable
per se, and their mere use gave rise to a presumption of malice
which, in the circumstances, has not been rebutted (Wiggill v.
Gqangasholo, 1909, E.D.C. 237); nor according to the evidence
has there been any public retraction and apology in terms of the
first proviso to sub-section (2) of section 132 of the Natal
Code of Native Law, published under Proclamation No. 168 of
1932, and the appeal should accordingly succeed. [Mtalane v.
Ngcobo, 1941, N.A.C. (T. & N.), 26]

There remains the question of costs of the appeal.

It is obvious from what has been stated above that neither
party was responsible for the wrong judgment, as it resulted
solely from the Additional Native Commissioner’s having acted
mero motu; nor could the position have been cured by the
defendant’s abandoning the judgment since, in that event, the
Additional Native Commissioner would have been bound to
have entered either judgment for the plaintiff, or an absolution
judgment, depending on the extent of the abandonment, see
Rule 17 of the Rules of this Court published under Govern-
ment Notice No. 2887 of 1951; and either of these courses
would have created a position that the parties could not have
been expected to accept, since, on the one hand the defendant’s
plea is a denial that he used the words complained of, and on
the other hand the plaintiff had, at the time of judgment, made
out a prima facie case, so that both parties are enfi’led to have
the case tried to a conclusion; and an order from this Court is
necessary for that purpose. It seems to me therefore that
following the general practice in such circumstances, the costs
of appeal should be ordered to be costs in the cause. [Fisher
V. Pieterse, 1952 (2), S.A. 488 (S.W.A.)].

In the result I am of opinion that the appeal should be allowed,
that the Additional Native Commissioner’s judgment should
be set aside and that the record of the proceedings should be
returned to him for trial to a conclusion on the existing plead-
ings. Costs already incurred in the Court below and costs of
appeal to be costs in the cause.

Leibbrandt (Member): I concur.

Wessels (Member): 1 concur.

For appellant: Mr. T. J. D’ Alton.

Respondent in person.

203

NORTH EASIERN
NATIVE APPEAL COURT.

ZULU V. MDHLETSHE.

N.A.C. CASE No. 35/52.

Vryheid: 2nd July 1952 before Steenkamp, President, Balk and

Bayer, Members of the Court.

ZULU CUSTOM.

Native customary Union — Infant betrothal — Agreement repug-
nant to principles of public policy — Payments made there-
under not recoverable.

Native Estate: Liability of heir to late father’s debts to extent

of assets derived from that estate.

Summary: Cattle and money claimed by plaintiff alleged to

have been advanced by his father to defendant’s father in
pursuance of an agreement between them that the former
woud marry the then infant daughter of the latter when
she reached maturity. That daughter later married another
man who paid lobolo for her to defendant’s father. Plain-
tiff and defendant are the general heirs of their respective
late fathers.

■ Held: That as an agreement of infant betrothal is repugnant
to the principles of public policy, any payments made
thereunder are not repayable.

Held further: That as it is manifest from defendant’s uncon-
troverted evidence that his late father left him in all three
head of cattle which were slaughtered in connection with
the cleansing ceremonies at his late father’s death, and two
horses which died soon thereafter, and that defendant was
obliged to meet his late father’s funeral expenses from his
own pocket, the defendant cannot be held liable for his late
father’s debts.

'Cases referred to:

Butelezi v. Ndhlela, 1938, N.A.C. (T. & N.), 175.

Dhlamini v. Zwane, 1947, N.A.C. (T. & N.), 10.

Ngcobo V. Mkize, 1 N.A.C. (N.E.), 249.

Ngcango v. Jele N.O. 1 N.A.C. (N.E.), 275.

Mlaba v. Ciliza, 1 N.A.C. (N.E.), 391.

Jajbhay v. Cassim, 1939, A.D., 538.

Statutes referred to:

Section 116 of Proclamation No. 168 of 1932.

Appeal from the Court of Native Commissioner, Nongoma.

Balk (Permanent Member): —

This is an appeal from the judgment of the Native Commis-
sioner’s Court at Nongoma dismissing with costs an appeal against
the judgment of a Chief’s Court given in favour of the plain-
tiff (now respondent) in an action in which he claimed from
the defendant (present appellant) the recovery of twenty-two
head of cattle and £10.

In my view it is manifest from the evidence for the plaintiff
that he relies on the following facts to establish his case: —
(a) That the cattle and money in question were advanced
by the plaintiff’s father to the defendant’s father in
pursuance of an agreement between them that the then
infant daughter of the defendant’s father, viz. Nombiki-
nyana, would marry the plaintiff’s father when she
reached maturity;

9472-2

204

(b) that the plaintiff’s father had not married Nombikinyana,
when he died;

married another man who paid lobolo for her; and

(d) that the plaintiff and defendant are the general heirs.

of their respective late fathers.

As the plaintiff thus has to rely on an agreement of infant
betrothal and as it has been laid down by this Court that
such an agreement is repugnant to the principles of pubhc
policy and that any payments made thereunder are not recover-
able, it seems to me that the present appeal should succeed on
that ground, see Butelezi Ndhlela, 1938, N.A.C. (T. & N.),
175, and Sibeko’s case referred to therein, which, to my mind,
are not affected by the judgment in Jajbhay v. Cassim, 1939,
A.D. 538 because the reasoning in Mlaba v. Ciliza, 1, N.A.C.
(N.E.), 391, applies in the former cases.

Another factor conducive to the success of this appeal is
that the defendant derived no assets from his late father’s
estate wherewith to pay the latter’s debt’s, as is manifest from
the defendant’s uncontroverted evidence that his late father
left him in all three head of cattle which were slaughtered in
connection with the cleansing ceremonies at his late father’s
death, and two horses which died soon thereafter, and that
he (defendant) was. obliged to meet his late father’s funeral
expenses from his own pocket; and in terms of section one
hundred and sixteen of the Natal Code of Native Law published
under Proclamation No. 168 of 1932 which, according to the
plaintiff’s evidence applies, the defendant cannot in my view,
in the circumstances, be held to be liable for his late father’s
debts since, to give effect to what appears to have been intended
by the legislature, that Section falls to be construed to mean that
an heir of a deceased person is liable for the latter’s debts only
to the extent that he derived assets from the deceased’s estate
wherewith to pay such debts and that therefore a claim for a
deceased person’s debts against his heir cannot succeed where,
as in the present case, the livestock which formed the only
assets in the estate of such deceased person had either died
or had of necessity been legitimately used on behalf of that
estate many years before the claim was brought.

As regards the contention by the respondent’s Counsel that
no cognisance could be taken of the defendant’s evidence
regarding the extent to which he had succeeded to the assets
in his late father’s estate as the defendant had not specifically
pleaded that aspect as a defence, lit seems to me that no
special plea in that respect was necessary as the case emanated
from a Chief’s Court in which the pleadings are not precise and
as the old Rules for those Courts which apply in the instant
case, i.e. those published under Government Notice No. 2255
of 1928, make no provision for a re-statement of the pleadings
in a Native Commissioner’s Court on appeal thereto as do the
present Rules for those Courts published under Government
Notice No. 2885 of 1951.

To my mind it is unnecessary in the present case to consider
the question of onus of proof arising out of the provisions of
section one hundred and sixteen of the Natal Code of Native
Law, as the only evidence on record in that connection is that
of the defendant which, as intimated above, therefore falls to be
accepted. It should be added that the defendant in his evidence
stated that he is not the heir of the house of his late father to
which the girl, Nombikinyana, belonged, and that that evidence
IS uncontroverted.

205

In the result I am of opinion that the appeal should be
sustained with costs and that the judgment of the Court a quo
should be allowed to read: —

“ The appeal is allowed with costs and the Chief’s
judgment is altered to one for the defendant with costs

Bayer (Member): 1 concur. I feel that in this case it becomes
unnecessary as regards the question of onus to go beyond the
remarks embodied in my brother Balk’s judgment.

Steenkamp (P): I agree that the appeal should be allowed.

Section 116 of the Code reads: “An heir succeeding to

property ’’. The emphasis should be laid on the

word “succeeding”. In the case of Ngcango v. Jele N.O. 1,
N.A.C. (N.E.), 275, it was stated that on the death of a person
the estate immediately devolves upon the heir. The question
arises whether a distinction should be drawn between the words
“ succeeding ” and “ devolving ”. In my view an estate may
devolve on the heir immediately on the death of the deceased
person, but can it be said that the heir succeeds thereto imme-
diately. Surely he cannot succeed until he takes charge of the
property. Let me quote the example of an heir who is away
at work; his father dies and leaves a number of cattle but before
the heir can go home to take possession of the cattle they all
die. The cattle admittedly devolved on him but he has not
succeeded thereto. Moreover the underlying principle of the
Section in question would appear to mean that if an heir
receives any benefit from an estate he must defray the debts
of that estate to the extent of the assets to which he had
succeeded.

Council for respondent advanced the argument that a defen-
dant to escape liability as provided in Section 116 of the Code,
must specifically plead that he inherited nothing from his father..

On the other hand it was submitted that a plaintiff must
aver in his summons that the defendant inherited property
from the estate of his late father and it then becomes the duty
of the defendant either to deny or admit such an averment.

It seems to me that neither of these submissions should be
accepted unequivocally as in cases before a Chief no written
summons or other pleadings are filed, and what would appear
to be most important is that during the course of the proceedings
it should be elicited by the Presiding Officer or by the legal
representatives whether the defendant did in fact inherit property.
If there is a dispute on this question, it is my considered view
that the onus rests on the defendant to satisfy the Court that
he did not inherit sufficient property to liquidate the debt
incurred by his late father.

In the case of Dhlamini v. Zwane, 1947, N.A.C. (T. & N.),
10, this Court decided that the onus was on defendant to
prove that he did not inherit. In the later case of Ngcobo v.
Mkize, 1, N.A.C. (N.E.), 249, it is mentioned that the provisions
of Section 116 are opposed to ancient Native Law and custom
under which an heir was liable for his father’s debts irrespec-
tive of the value of assets inherited. The legislature having
seen fit to grant relief to the heir, it seems only correct that
if an heir wants to benefit from a statutory provision, the. onus
rests on him to take such a defence or to prove what his
inheritance was as such a fact can only be peculiarly within his
own knowledge.

For Appellant: Mr. Turton of Guy, Turton & Hannah, Vryheid.

For Respondent : Mr. H. H. Kent of Eshowe.

206

NORTH EASTERN
NATIVE APPEAL COURT.

MNIKATI V. CEKWANA.

N.A.C. CASE No. 36 of 52.

Pietermaritzburg: 17th July, 1952. Before Balk, Acting

President; Bridle and Oftebro, Members of the Court.

LAW OF PROCEDURE.

■Practice and Procedure — Secondary evidence as to contents of

document — When admissible — Appeal — Remittal for further

evidence. Circumstances justifying granting.

Summary: In an action in which the contents of a document
were in issue, defendant had failed to produce that docu-
ment, and had also not brought any evidence to substantiate
the facts that the document had been lost and that search
had been made therefor. The presiding judicial officer held
that secondary evidence as to its contents was inadmissible.

'Held: That the presiding Native Commissioner in the Court
a quo rightly held that secondary evidence of that document
•was inadmissible.

Held further: That as it has not been shown on appeal that
there are present in the instant case any of the special
^circumstances justifying the granting of that indulgence,
and as it is clear from the record of the proceedings in
the Court a quo that the appellant was afforded every
opportunity of presenting his case in that Court, the appli-
cation to remit the case to the Native Commissioner for
further hearing should be refused.

Cases referred to:

du Plessis v. Ackerman. 1932 (E.D.L.) 139.

Statutes referred to :

Section 15 Act No. 38 of 1927.

Appeal from the Court of Native Commissioner, Impendhle.

Balk (Acting President): —

This is an appeal from the judgment of a Native Commissioner’s
Court in an action in which the plaintiff (now respondent)
■claimed from the defendant (present appellant) —

(a) delivery of certain five head of cattle or alternatively

damages in the sum of £68;

(b) damages in the sum of £25 for certain wrongful grazing;

and

wrongful action in depriving the plaintiff of the said

cattle.

In his particulars of claim the plaintiff inter alia averred
that: —

“(1) On or about the 11th day of August, 1951, defend-
dant wrongfully and unlawfully removed five (5) head of
cattle belonging to plaintiff from plaintiff’s property.
Despite demands made, defendant has failed, neglected and
refused to restore the said cattle to plaintiff’s possession
and control.

(2) From the 1st day of July, 1951, to the 31st day of
August, 1951, defendant wrongfully and unlawfully, and
without plaintiff’s permission, grazed or caused to be grazed,
certain 1,000 sheep on plaintiff’s property. By reason of
defendant’s action plaintiff has suffered damages on this
score in the sum of twenty-five pounds (£25).”

207

The defendant pleaded: —

“(1) I did remove 5 head of cattle belonging to plaintiff,
I will return the cattle when plaintiff pays me the £35
which he owes me for unlawfully ploughing my lands.

(2) 1 admit grazing 1,000 sheep on a piece of land which
I have leased from David Molife. It is my land. Plaintiff
has not yet any right over this land. I do not owe plain-
tiff any money.

(3) I am prepared to pay damages

Judgment was entered for plaintiff with costs as follows: —

On claim (a): For five head of cattle.

On claim (b): For £25.

On claim (c): For £5.

The appeal is brought on the following grounds: —

“ 1. That the judgment is against the weight of evidence.
2. That the learned Commissioner erred in not admitting
secondary evidence by Attorney Leslie Simon, of the contents
of a document alleged to have been lost ”.

It is manifest from the defendant’s plea and the evidence
that he had no right whatsoever to deprive the plaintiff of his
cattle and there can therefore be no question of the awards by

the Court a quo to the plaintiff of the five head of cattle and

damages on claims (a) and (c), respectively, not being justified.

As regards claim (b), it emerges from the evidence that —

(1) the plaintiff purchased portion of a certain land from

David Molife (since deceased) in terms of a deed of sale

dated the 2nd August, 1949, handed in by the plaintiff at

the trial;

(2) it is stipulated in the said deed of sale that possession

of the said portion of land shall be given to the plaintiff
immediately;

(3) the said portion of land was duly surveyed in December,.

1949, in pursuance of the said sale;

(4) whilst the said portion of land has not been transferred

to the plaintiff, he, at the latest, took possession of it in
December, 1950, when he commenced fencing it; and that

(5) during the period 1st July, 1951, to the 31st August, 1951,

defendant had one thousand of his sheep grazing on the
said portion of land without the plaintiff’s consent.

The defendant’s case is that he had leased the said portion
of land with ajoining land from the said David Molife under
a written agreement, which was still current at the time of the
sale referred to above and at other material times. The defen-
dant, however, did not produce that agreement of lease at
the trial, so that the Court a quo properly awarded the plaintiff
damages on claim {b).

As regards the second and final ground of appeal, the defen-
dant’s witness, Sibhamu Molife, said in his evidence that the
written agreement of lease in question was in the possession of
Mr. Attorney Simon, who, however, in his evidence for defen-
dant, stated that he had handed that agreement back to the
defendant at the latter’s request. Neither the defendant nor any
of his other witnesses made any mention in their evidence as
to what had become of the said agreement of lease, so that there
cannot be said to be any evidence substantiating it loss. It
follows that the presiding Native Commissioner in the Court
a quo rightly held that secondary evidence of that document was
inadmissible, see Scoble’s “ Law of Evidence in South Africa ”
(Second Edition) at pages 20 and 338, and the authorities there
cited.

208

Counsel for the appellant conceded that the appeal could
not succeed on the grounds dealt with above but he urged
that, as the appellant had not been represented in the Court
below, this Court should, as an indulgence, set aside the judg-
ment on claim (b) and remit the matter to the Court a quo to
to enable the appellant either to produce the alleged deed of
lease or to lead evidence of its loss and thereupon secondary
evidence of its contents.

The indulgence sought is tantamount to a request by the*
appellant for leave to call further evidence after he had closed
his case, and it has not been shown that there are present in the
instant case any of the special circumstances justifiying the
granting of that indulgence as were laid down in du Plessis v.
Ackerman, 1932 (E.D.L.) 139, in which the whole position in
regard to the aspect in question was reviewed. Furthermore
it has not been shown that the appellant suffered any substantial
prejudice warranting relief under the wide powers conferred on
this Court under section fifteen of the Native Administration Act,
1927. On the contary, it seems clear to me from the record of
the proceedings in the Court a quo that the appellant was
afforded every opportunity of presenting his case in that Court
for, at his instance, the case was postponed to enable him
to engage an Attorney and at the resumed hearing at which
the appellant continued to conduct his case in person the presi-
ding officer ruled whilst the appellant’s witness, Mr. Attorney
Simon, was giving evidence, that secondary evidence regarding
the alleged deed of lease was inadmissible. This ruling must
have made it apparent to the appellant that he must either
produce the alleged deed of lease or lead evidence as to its
loss to prove his case. He failed to adopt either of these courses
at that hearing, nor did he apply for a postponement in order
to enable him to do so but instead he called another witness
who took the case no further and then closed his case.

In the result I am of opinion that the appeal should be dismis-
sed with costs.

Bridle (Member); I concur.

Oftebro (Member): I concur.

For Appellant; Mr. C. Nathan of Pietermaritzburg.

For Respondent; Adv. J. H. Niehaus instructed by Messers.

C. C. C. Raulstone & Co. of Pietermaritzburg.

NORTH EASTERN
NATIVE APPEAL COURT.

SHANGASE v. MTIYANE.

N.A.C. CASE No. 37/52.

Pietermaritzburg: 17th July, 1952. Before Balk, Acting

President, Bridle and Oftebro, Members of the Court.

LAW OF PROCEDURE.

Practice and Procedure: Application for recall of defendant
by plaintiff — Failure to advance any special ground justifying
such indulgence.

Summary: Appellant, plaintiff in the Court below, appealed
inter alia on the ground that the Native Commissioner
erred in refusing plaintiff’s application to recall defendant
for further cross-examination “ as there were a few ques-
tions he would like to put to him ”.

209

Held: That as the plaintitt did not advance any special ground
justifying that indulgence the Court a quo cannot be said
to have erred in refusing the application.

Cases referred to:

du Plessis v. Ackerman, 1932, (E.D.L.), 139.

Mkize V. Mkize, 1, N.A.C. (N.E.), 336.

Statutes referred to:

Sub-Rule 2 (1) of Government Notice No. 2887 of 1951.

Appeal from the Court of Native Commissioner, Camperdown.

Balk (Acting President): —

This is an appeal from the judgment of a Native Commis-
sioner’s Court dismissing both of the plaintiff’s (present appel-
lant’s) claims with costs in a action in which he sued the
defendant (now respondent) for payment firstly of the sum of
£252 and secondly of £159 12s. for remuneration of services
rendered by the plaintiff to the defendant in terms of two
separate verbal agreements entered into by them.

The defendant, in his plea in the Court a quo, denied that
he was indebted to the plaintiff.

The grounds of appeal are: —

“ 1. That the learned Native Commissioner erred in
refusing plaintiff’s application to lead further evidence and
to recall some witnesses; and for ruling the application
was based on no law.

2. That the Native Commissioner was wrong in denying
plaintiff a right to reply to defendant’s address.

3. T1 at the Native Commissioner was influenced by
outside factors in arriving at the said judgment.

4. Thivt in any event the said judgment is bad in Law
and is against the weight of evidence adduced.

5. That the learned Native Commissioner has further
erred in refusing to furnish appellant with reasons for
judgment despite payment to him of the prescribed fee”.

Dealing with these grounds seriatim —

1. According to the presiding officer’s notes of the

proceedings in the Court a quo, the plaintiff applied for
the recall of the defendant for further cross-examination

“ as there were a few questions he would like to put to

him ”. The appellant, who argued his appeal in person,
alleged in this Court that he had also applied to the Court
a quo to re-open his case but that he was not even afforded
an opportunity of advancing his reasons in support of that
application. There is nothing in the record of the proceed-
ings in question to indicate that such further application
was ever made and as the appellant did not apply for the
amendment of that record in that respect, that record must
be accepted as correct. Furthermore the appellant did not
furnish any proof in regard to the irregularly alleged by

him. As regards the plaintiffs application in the Court

a quo for the recall of the defendant for further cross-
examination, the former did not advance any special ground
justifying that indulgence, see du Plessis v. Ackerman, 1932
(E.D.L.) 139, and the authorities there cited, and in my
view therefore the Court a quo cannot be said to have erred
in refusing that application, and accordingly this ground of
appeal fails.

2. There is no entry in the record in question that the
plaintiff intimated in the Court a quo that he wished to
reply to the defendant’s address nor did the plaintiff apply
for an amendment of the record in so far as concerns his
verbal intimation in this Court that he had stood up to
reply but had been told to sit down by the presiding officer
in the Court a quo. Furthermore the appellant did not

210

furnish any proof in regard to the alleged irregularity.
That being so and as the prescribing officer has categori-
cally stated in his reasons for judgment that not only was
the plaintiff not refused an opportunity of replying but
that no such application was ever made, I am of opinion
that mere is no suustance in this ground of appeal, see
Mlaze V. Mkize, 1, N.A.C., (N.E.), 336 and the authonties
cited therein.

3. There appears to be nothing in the record of^ the
proceedings in this action indicating that the presiding
officer in the Court a aiio was influenced by factors outside
that record in arriving at his findings nor did the appellant
show that the presiding officer was influenced by any such
extraneous factor. That being so and as the latter made
it quite clear in his reasons for judgment that no outside
factors had influenced him in his decision and that it was
arrived at solely on the evidence on record in this case,
this ground of appeal is without substance.

4. It is manifest from -his. reasons for judgment that
the presiding officer in the Court a quo gave due conside-
ration both to the demeanour of the witnesses and to the
probabilities and improbabilities as were disclosed by the
evidence to have been material in arriving at his judgment,
which amounts to no more than one of absolution from
the instance on both claims, see “The Civil Practice of the
Magistrates’ Courts ” by Jones & Buckle (Fifth Edition) at
the foot of page 327; and to my mind the appellant has not
shown that the Court a quo erred in that judgment. In
my view therefore this ground of appeal fails.

5. It emerges from the reasons for judgment referred
to above that the appellant’s request for a written judgment
was only received on the 5th April, 1952, whereas judgment
in this case had been entered on the 25th March, 1952.
The request was therefore out of time, see Sub-Rule 2 (1)
of the Rules of this Court published under Government
Notice No. 2887 of 1951. It is also clear from his reasons
that the presiding officer concerned prepared them time-
ously and that the delay in their transmission to the appel-
lant’s Attorney was due to the furnishing of additional
reasons necessitated by the notice of appeal, which was
received on the 19th April, 1952. Obviously, therefore,
this ground of appeal is obviously not well founded.

I am therefore of opinion that the appeal should be dismissed
with costs.

Bridle (Member): I concur.

Oftebro (Member: I concur.

Appellant in Person.

For Respondent: Adv. J. H. Niehaus, instructed by Randles
^ Davis, Camperdown.

NORTH EASTERN
NATIVE APPEAL COURT.

MBATA V. MDHLALOSE.

N.A.C. Case No. 39 of 1952.

Vryheid: 1st July, 1952. Before Steenkamp, President; Balk
and Bayer, Members of the Court.

LAW OE PROCEDURE.

fractice and Procedure — Appeal from Chief’s Court — Condona-
tion of late noting — Lack of funds and unsubstantiated
allegation of illness — No indication Chief’s decision in any
way unlawful or unjust.

211

Summary: An appeal was brought to this Court by the

unsuccessful applicant for condonation of late noting of
appeal to a Native Commissioner’s Court against a judg-
ment of a Chief’s Civil Court.

Held: That lack of funds and the unsubstantiated allega-

tion of illness do not constitute good cause for condonation
of late noting of an appeal against the judgment of a
Chief’s Civil Court.

Held further: That on the merits of the case the applica-

tion could not succeed.

Appeal from the Court of the Native Commissioner, Nqutu.

Balk (Permanent Member): —

This is an appeal against a Native Commissioner’s refusal to
entertain an application for extension of the prescribed period
for noting an appeal to his Court from a judgment of a Native
Chief’s Court in a civil matter.

The reasons given by applicant (present appellant) in the
Native Commissioner’s Court for the delay in noting the appeal
against the Chief’s judgment are lack of funds (in this case, 5s.),
and illness. It has repeatedly been laid down by this Court
that the mere allegation of lack of funds does not in itself
constitute good cause for condonation of the late noting of an
appeal and it is manifest from the evidence that the alleged
illness has not been substantiated. It follows that the applica-
tion cannot succeed on those grounds. But this does not
conclude the matter, as the merits of the applicant’s contemplated
appeal have to be considered. Neither the records nor the
reasons for judgment furnished by the Chief concerned indicate
that his decision is in any way unlawful or unjust. On the
contrary, it emerges therefrom and is borne out by the evidence
for the applicant, i.e. that given by his son, Sikawoti, that in
the Chief’s Court the applicant admitted his liability to refund
to the respondent the whole of the lobolo paid by the latter
in respect of his contemplated customary union with the appli-
cant’s daughter, which had failed, i.e. the seven head of cattle
and £9, for which judgment was given for respondent in that
Court.

It is true that in a supporting affidavit handed in by the
applicant at the hearing of the application, he stated that two
of the cattle in question had died from natural causes and their
death had been reported to the respondent, that he had advised
the respondent that two other of those cattle had been attached
in satisfaction of a judgment against his (applicant’s) son, Sikawoti
(who is referred to above) but that the respondent had failed
to intervene, and that £4 of the £9 constituted damages for the
abduction of his daughter by the respondent. But it appears
from that affidavit that the alleged abduction amounted to no
more than an engagement visit in respect of which no damages
were payable, see Stafford’s “ Principles of Native Law ”
(Second Edition) at page 243; and there is nothing in the appli-
cant’s affidavit or viva voce evidence, nor in his cross-exami-
nation of the Chief concerned, to indicate that he had mentioned
in the Chiefs Court the death of the cattle or the damages
or the respondent’s failure to intervene in the matter of the
attachment. Moreover those defences run counter to the appli-
cant’s unqualified admission of liability in the Chiefs Court
in respect of the whole of the claim, and to his statement in
that Court that he had intended to come and pay but had lost the
money. And in the absence of any explanation as to why
those defences had not been brought in the Chiefs Court,
it is difficult to escape the conclusion that they savour of an
afterthought designed to evade repayment in full of the
respondent’s just claim.

212

It therefore seems to me that the application is entirely
devoid of merit and that the appeal should accordingly be

dismissed with costs.

Steenkamp (President); I concur.

Bayer (Member): I concur.

Appellant in Person.

Respondent in default.

NORTH EASTERN
NATIVE APPEAL COURT.

DHLAMINI AND OTHERS v. GAZU.

N.A.C. CASE No. 42/52.

Pietermaritzburg: 17th July 1952; Before Balk, Acting

President, Bridle and Oftebro, Members.

ZULU CUSTOM.

Damages: Assault — Liability of father or guardian for tortious
acts of child or ward under Native Law.

Summary: Plaintiff sued and obtained judgment against the
three defendants for damages for an assault committed on
him by the first two defendants, the third defendant being
sued solely on grounds that he was the guardian of the
second defendant and that the latter had been resident in
the former’s kraal when the alleged assault was committed.
Held that: As it has not been admitted in the pleadings, or at
any other stage, nor is there any evidence that the second
defendant was living at the kraal of the third defendant at
the time of the commission of the alleged assault, third
defendant’s appeal against the judgment must succeed.

Cases referred to:

Andrews v. Levy, 1930, S.R., 101.

Mokgohloa v. Senomadi, 1 N.A.C. (N.E.), 325.

Kuzwayo and Ors, v. Zwane, 1948, N.A.C. (T. & N.), 11.
Rex vs. Geere & Ors, 1952, (2), S.A., 319, (A.D.).

Statutes referred to:

Section 141 of Proclamation No. 168 of 1932.

Appeal from the Court of Native Commissioner, Bulwer.

Balk (Acting President); —

Good cause having been shown the late noting of the appeal
to this Court was condoned.

This appeal has been brought by the three defendants against
a judgment of a Native Commissioner’s Court awarding the
plaintiff (now respondent) damages for assault an the sum of
£51. 19s. and costs against them, jointly and severally, the one
paying, the others to be absolved.

The grounds of appeal advanced by the first and second
defendants are : —

“ (fl) That the evidence given by plaintiff and his witnesses
Mpandeni Dhlamini was contradictory and Magobeyana,
the wife of Mpandeni Dhlamini, who was present, was
not called, and there was therefore no corroboration
of plaintiff’s evidence and Mpandeni Dhlamini admitted
that he was the first to use the axe by which plaintiff,
thereafter, suffered an injury to his eye.

213

(/)) In any event, there was no evidence that defendants
Nos. 1 and 2 acted in concert as averred in the summons
and it was common cause that plaintiff’s witness
Mpandeni Dhlamini threw the axe at defendant No. 2.

use of the axe or for the injury caused to plaintiff’s
eye.

(d) That in any event the verdict is against the weight of
evidence and contrary to law ”.

The ground on which the appeal is brought by the third
defendant is: —

“ That the case was tried under Common law and that no
liability could, therefore, attach to him for any delict
committed by any inmate of his kraal ”.

It is convenient to deal with the third defendant’s appeal
first as, to my mind, that appeal can readily be resolved
independently of the plaintiff’s case against the first and second
defendants.

It is manifest from the summons in this case that the third
defendant was sued solely on the grounds that he was the
guardian of the second defendant and that the latter had been
resident in the former’s kraal when the alleged assault was
committed. In other words, the third defendant’s liability was
wholly contingent upon the application of Native Law, in this
instance that set out in Section 141 of the Natal Code of
Native Law published under Proclamation No. 168 of 1932.

According to his notes embodied in the record of the pro-
ceedings in question, the presiding Native Commissioner, how-
ever, applied Common law in deciding this case. But under
Common law the liability of a father or guardian for the tortious
acts of his child or ward is not based on their relationship as
such, but rests upon other principles which have no application
in this case. (See Andrews v. Levy, 1930, S.R. 101, Mokgohloa
V. Senomadi, 1 N.A.C. (N.E.), 325, and the authorities quoted
in those judgments).

It is difficult to understand why the Native Commissioner
decided to apply Common law instead of Native Law in the
instant case as the evidence indicates that the parties are
resident in a rural Native location, apparently under the ordinary
tribal conditions obtaining in such areas and as an action for
damages for assault lies under Native Law in Natal, see
Stafford’s “ Principles of Native Law ” at page 250. However
that may be, it has not been admitted in the pleadings or at
any other stage, nor is there any evidence that the second
defendant was living at the kraal of the third defendant at
the time of the commission of the alleged assault, so that the
third defendant’s appeal must succeed, even if Native Law were
applied, see Stafford’s “ Principles of Native Law ” at page
246, and Kuzwayo & Others v. Zwane, 1948, N.A.C. (T. & N.),
11.

Coming to the appeal by the first and second defendants,
it seems to me that the evidence of the plaintiff’s witness,
Mpandeni Dhlamini substantially corroborates the plaintiff’s
testimony. Furthermore there are a number of material dis-
crepancies between and in the evidence of the first and second
defendants and certain material improbabilities are disclosed
by that evidence. For example, the first defendant stated that
the plaintiff did not attack him at all, whereas the second
defendant stated that the plaintiff struck at the first defendant
with an axe. Again the first defendant in his evidence in
chief made no mention of the second defendant’s having also

214

hit the plaintiff with a stick, but stated that after the second
defendant had struck the plaintiff one blow with an axe,
“ that was the end of it Under cross-examination, however,
the first defendant stated that the second defendant had inflicted
three head wounds on the plaintiff with a stick whilst the
plaintiff was down; and the second defendant stated that he
had hit the plaintiff only twice with a stick but could not
explain the latter’s third head injury, adding that perhaps he
had caused it. The first defendant admitted that the plaintiff
and Mpandeni were ploughing at the time in question and it is
therefore more probable that the plaintiff at that time only
had a whip with which he drove the oxen, as averred by him
and Mpandeni in their evidence. That this was so gains support
from the fact that the first and second defendants did not
cross-examine the plaintiff regarding a loaded stick which
they alleged in their evidence he had, and from the first
defendant’s unconvincing explanation as to why they had not
cross-examined him about it, viz., because no injury had been
caused with that stick. Moreover, the first defendant stated
that the plaintiff had an axe and a loaded stick, whilst the
second defendant stated that the plaintiff had an axe, a loaded
stick and another stick. Again the first and second defendants
stated that plaintiff dropped the axe but they do not explain
why he dropped it. The second defendant specifically stated
that he could not say what made the axe drop. Nor could
he explain why Mpandeni should have thrown the axe at him,
a matter which Mpandeni makes clear in his evidence.

All these factors lead me to believe that the version emerging
from the evidence for plaintiff is by far the more probable,
and to my mind the appellants concerned have not shown any
good reason for holding that the Native Commissioner erred
in accepting that version.

It is clear from Mpandeni’s evidence that the first and second
defendants acted in concert in pursuance of a common purpose
in assaulting the plaintiff with both the stick and axe, so that
they are both jointly responsible in Law for all the injuries
inflicted by them on him in the course of that assault. [Rex v.
Geere & Others, 1952 (2), S.A. 319 (A.D.).]

In the result I am of opinion that the appeals by the first
and second defendants should be dismissed with costs^ that the
third defendant’s appeal should be allowed with costs, and that
the Native Commissioner’s judgment should be altered to read
as follows: —

“For plaintiff in the sum of £51 19s. with costs against
the first and second defendants jointly and severally, the
one paying, the other to be absolved to the extent of such
payment. The claim against the third defendant is dismissed
with costs ’’.

Bridle (Member); I concur.

Oftebro (Member): I concur.

For Appellant; Mr. J. Hershensohnn, of Pietermaritzburg.

For Respondent; Adv. J. H. Niehaus, instructed by Mr. H. L.
Bulcock, of Ixopo.

215

NORTH EASTERN
NATIVE APPEAL COURT.

TSHANGE V. KUNENE.

N.A.C. Case No. 48 of 1952.

Pietermaritzburg: 18th July, 1952. Before Balk, Acting

President; Bridle and Oftebro, members.

COMMON LAW.

Practice and Procedure — Plea of Res Judicata: Previous judgment

must be definite and final judgment.

Summary: A Native Commissioner’s Court dismissed the

Plaintiff’s claim on the ground that it was res judicata.

Held: That the judgment in the prior case relied upon is
couched in such uncertain terms that it cannot be regarded
as a definite and final judgment and therefore cannot found
the defence in question.

Appeal from the Court of the Native Commissioner, Rich-
mond.

Balk (Acting President: —

This is an appeal from the judgment of a Native Commis-
•sioner’s Court dismissing the plaintiff’s (present appellant’s)
claim on the ground that it was res judicata.

That claim was dismissed on the application of the defen-
dant’s Attorney after the plaintiff and his witness, Mjanyelwa,
had given evidence, and the plaintiff had been recalled and
further cross-examined.

Apart from the fact that the defence of res judicata was not
pleaded, it seems to me that the presiding Assistant Native
Commissioner in any event erred in holding that the matter
was res judicata, as the judgment of the Chief in the prior
^ase relied upon is couched in such uncertain terms that in my
view it cannot be regarded as a definite and final judgment and
therefore cannot found the defence in question.

I am therefore of opinion that the appeal should be allowed
with costs and that the Assistant Native Commissioner’s judg-
ment should be set aside and the record of the proceedings
returned to him for trial to a conclusion. Costs already
incurred in the Court below to be costs in the cause.

Bridle (Member: I concur.

Oftebro (Member): I concur.

For Appellant: Adv. J. H. Niehaus, instructed by Messrs.

Wynne, Cole and Tod.

For Respondent: Mr. J. R. N. Swain, of Messers. C. C. C.
Raulstone & Co.

216

NORTH EASTERN
NATIVE APPEAL COURT.

NCUBE V. DUVE.

N.A.C. CASE No. 59/52.

Pretoria: 10th September 1952. Before Steenkamp, President.

Balk and Vermeulen, Members of the Court.

COMMON LAW.

Contract of Loan — Illegal object.

Summary: Plaintiff alleged that he had lent £10 to defendant
in order that it should be paid to a policeman to “ fix ”
defendant’s passes to enable him to work in Pretoria.
Both plaintiff and defendant are foreign Natives.

Held: That as plaintiff lent the money to defendant well
knowing that is was required by defendant for an illegal
purpose, plaintiff is not entitled to recover the loan.

Cases referred to : —

Ley V. Ley’s Executors & Others 1951, (3), S.A., 186, (A.D.)
Jajbhay v. Cassim, 1939, A.D., 537.

Appeal from the Court of Native Commissioner, Pretoria.

Balk (Permanent Member): —

This is an appeal against a decree of absolution from the
instance with costs granted by a Native Commissioner’s Court
after both parties had given evidence and closed their cases,
in an action in which the plaintiff (present appellant) sued the
defendant (now respondent) for the recovery of a loan of £10
and costs.

The appeal is brought on the following grounds: —

“ A. The judgment is against the evidence and the weight
of evidence in that the Native Commissioner should
have found —

(i) that the plaintiff lent to defendant £10 as alleged;

(ii) that the plaintiff and his corroborative witness
were reliable;

B. The Native Commissioner erred in Law and/or fact
in holding that plaintiff had to prove his case beyond
doubt to obtain judgment.”

It is convenient to deal first with the final ground of appeal.

The presiding Native Commissioner in the Court a quo states
in his reasons for judgment that it was necessary for the plain-
tiff to prove his case beyond doubt to obtain judgment. Jt is
obvious therefrom that the Native Commissioner required too
high a standard of proof from the plaintiff to establish the facts
of his case, for the onus of proving facts in civil cases is dis-
charged on a preponderance of probability, see Ley v. Ley’s
Executors & Others, 1951 (3) S.A. 186 (A.D.), at page 192.

It remains to examine the evidence in the instant case to
determine whether the plaintiff can be said to have on a
preponderance of probability discharged the onus of proof
resting on him on the pleadings in consequence of the denial
therein by the defendant that the alleged loan was made.

In this connection it seems to me that the following points
put forward by Counsel for appellant are well taken: —

(1) That the evidence of the plaintiff’s witness, Mackson
Moyo, substantially corroborates that of the plaintiff
regarding the making of the loan.

217

(2) That the only real discrepancy between the evidence of
the plaintifl and that of Mackson, viz., that regarding
the positions in which they and the defendant sat when
the loan was made, is of minor importance in that that
discrepancy can be accounted for by the considerable
period that elapsed between the time of making the
alleged loan and their giving evidence.

(3) That the inference adverse to the plaintiff’s case drawn
by the Native Commissioner on account of Mackson’s
not having mentioned in his evidence what Detective van
Rensburg had said at the interview between the latter
and the defendant, was not justified inasmuch as whilst
the evidence indicates that Mackson accompanied the
defendant to Detective van Rensburg it is not at all clear
therefrom whether Mackson was present at the interview
between Detective van Rensburg and the defendant. The
inference in question, it should be added, emerges from
the Native Commissioner’s reasons for judgment.

(4) That the criticism of the Native Commissioner in his
reasons for judgment regarding the plaintiff’s failure
to call Detective van Rensburg as a witness is also not
justified as in the very nature of things Detective van
Rensburg could not be regarded as plaintiff’s witness,
regard being had to the plaintiffs’ evidence as follows: —
“ He (defendant) said that a European van Rens-
burg (a Detective in the Police) had said that as a
Rhodesian, defendant could not work in town but if
Lazarus (defendant) brought him £10 he would fix it
up and get him passes ”.

(5) That the defendant under cross-examination admitted that
the plaintiff and his family had been very friendly to
him, thus indicating that there was no motive for fabri-
cation of the plaintiff’s claim.

(6) That the contradictions in the defendant’s evidence (which
is the only evidence for the defence) are such that he
cannot be regarded as an honest witness.

It must also be mentioned that —

(fl) it is common cause that the plaintiff and defendant are
both Rhodesian Natives, that the defendant whilst out of
work lived with the plaintiff during December 1951 when
the loan is alleged to have been made and that the defen-
dant went to interview Detective van Rensburg about
his employment; and these factors together with the
purpose of the loan as disclosed in the excerpt from the
plaintiff’s evidence quoted above undoubtedly add to the
probabilities in favour of the plaintiff’s case;

(b) the Native Commissioner found no facts to have been
proved and he did not comment on the demeanour of
the witnesses.

In these circumstances I am of opinion that the plaintiff has
on a preponderance of probability discharged the onus resting on
him on the pleadings.

But this finding does not dispose of the case as the question
of illegality still remains to be considered.

218

To my mind it is obvious from the excerpt from the plaintiff’s
■evidence quoted above as also from his other testimony and that
of his witness, Mackson, that the plaintiff when making the
loan of £10 was aware that the defendant required that money
for an illegal purpose or in other words that the plaintiff lent the
money well knowing that at was required by the defendant for
an illegal purpose, viz., that the £10 was to be handed by the
defendant to a member of the Police to procure passes to which
he was not entitled.

It seems to me, therefore, applying the principles enuciated
in Jajbhay v. Cassim, 1939 A.D., 537, that notwithstanding
that there is no proof whatsoever that Detective van Rensburg
either solicited or received the money in question the plaintiff
in the instant case is not entitled to recover the loan and that
the appeal should accordingly be dismissed with costs.

Steenkamp (President): I Concur.

Vermeulen (Member): I Concur.

For Appellant: Adv. D. J. Curlewis, instructed by Messrs.
.Hazelhurst, Galgut & Courtis.

For Respondent: Mr. Nel, of Messrs. Nel and Nel.

219

SOUTHERN NATIVE APPEAL COURT.

MXAMLI V. MABANDLA.

N.A.C. Case No. 32/1952.

Port St. Johns: 26th September, 1952. Before Warner Acting
President; Wilbraham and Holdt, Members.

PRACTICE AMD PROCEDURE.

Practice and Procedure — Chief’s Court — Appeal from — Lapsing
of Appeal on Grounds of Non-Prosecution.

Appellant obtained judgment against respondent on 12th
August, 1947, in the Court of Chief Victor Poto for five head
of cattle and costs. Respondent noted an appeal to the Native
Commissioner’s Court on 14th August, 1947. Notice of appeal
was served on appellant personally and no further steps were
taken in regard to the appeal until 25th October, 1951, when
respondent’s attorney issued a notice stating that the Native
Commissioner, Ngqeleni, had fixed the 7th February, 1952, as
the day for trial of the appeal case.

Appellant lodged an objection against the hearing of the appeal
in the Native Commissioner’s Court on the grounds inter alia
that the appeal having been duly noted was not prosecuted
within the limit of time fixed by sub-section (4) of section twelve
of Act No. 38 of 1927, as amended.

The appeal is .against the Court’s decision overruling the
objection.

Held:

(1) That the notice of appeal should have been served on

the Chief or his representative in terms of section 5 of
Government Notice No. 2255 of 1928.

(2) That it is the duty of the appellant if he is not notified

of the day of hearing by the Clerk of the Court, to
request the latter to fix the day so that notice can be
served on the respondent. In other words, the appellant
should not remain inactive until notified of the date as
he has to make arrangements for the serving of the notice
on the respondent in terms of section 6 of the Regu-
lations published under Government Notice No. 2255
of 1928.

(3) That it is incorrect that the Clerk of the Court shall

merely fix a date for the hearing of the appeal and
notify the appellant and the respondent accordingly.
The Clerk of this Court is required to fix a day for
the hearing of the appeal and notify the appellant
and issue a notice to the respondent, but before the
appeal can be heard the appellant is required either
to obtain the Notice from the Clerk of the Court and
serve it on the respondent or make the necessary
arrangements for it to be served by the Messenger.

(4) That section twelve (4) of Act No. 38 of 1927 provides

for the suspension of the execution of a judgment if
an appeal has been noted against it and provides further
that the suspension of execution shall continue until
the appeal is decided or until the expiration of the
period prescribed for its prosecution if it was not

prosecuted within that period, or until the appeal has

been withdrawn or lapsed.

It is thus clear that the act contemplated that a time

should be fixed for the prosecution of the appeal

although provision for this is not made in the regulations.

220

(5) That an appeal cannot be held to have “ lapsed ” for

want of prosecution if the appellant fails to appear and
prosecute his appeal on the day fixed as the case could
be postponed or dismissed If the latter, then it must be
held to have been decided.

(6) That as section twelve (4) of Act No. 38 of 1927 contem-

plates a period for the prosecution of an appeal at the
expiration of which such appeal would lapse and as
the Regulations do not prescribe a period for the
prosecution of an appeal the Court should be guided
by the fact that it is in accord with convenience, reason,
justice and legal principles that litigation should be
brought to finality as expeditiously as possible. (Vide
Maxwell, p. 198, 9th edition, “ Interpretation of
Statutes ”.)

(7) That respondent failed within a reasonable time to carry

out the duties imposed on him by section 6 of the
Regulations (Government Notice No. 2255 of 1928).

(8) That the appeal had lapsed in September or October,

1951, when the judgment was executed and the notice
of trial issued.

Appeal succeeds.

Statutes referred to:

Act No. 38 of 1927.

Government Notice No. 2255 of 1928.

Works of Reference:

Maxwell “Interpretation of Statutes”, 9th edition, p. 198.
Appeal from the Court of the Native Commissioner, Port
St. Johns.

Warner (Acting President):

Plaintiff sued defendant in the Court of Chief Victor Poto
for eight head of cattle or their value £40. On the 12th August,
1947, the Chief’s Court gave judgment for plaintiff for five head
of cattle or their value £25.

On the 14th August, 1947, a document signed by defendant
stating that he was noting an appeal against the judgment of
the Chief’s Court was lodged with the Clerk of the Court.
This document bears an endorsement that it was served by the
Messenger of the Court on “ Defendant personally ” and also
bears a note “ Advise return L. Carey Miller ”.

No further steps appear to have been taken in regard to the
appeal until the 25th October, 1951, when defendant’s attorney,
Mr. L. Carey Miller, issued a notice to the effect that the Native
Commissioner, Ngqeleni, had fixed the 7th February, 1952, as
the day for trial of the appeal case.

Plaintiff lodged an objection to the hearing of the appeal on
the following grounds: —

“ 1. (a) Judgment of Chief’s Court was granted on 12th
August, 1947, and appeal noted on 14th August,
1947, such being within the period of time fixed by Act
No. 38 of 1927, section twelve sub-section (4) as
amended.

{b) That the appeal having been duly noted, was not
prosecuted within the limit of time fixed by the said
sub-section (4) of section twelve of Act No. 38 of
1927, as amended.

(c) That by reason of paragraph (fe) the said appeal
failed to operate by reason of lack of due prose-
cution and was abandoned or lapsed.

{d) That during or about September or October, 1951,
the plaintiff ip original action, now respondent,
obtained from the Chief’s Court a writ of execution
under the said judgment and recovered payment there-
of.

221

(f) That only after the execution of above-mentioned writ
did the appellant take steps to have the appeal set
down for trial.

(/) (i) That respondent will be prejudiced to great extent
should the appeal be now proceeded with, inas-
much as having received payment he has disposed
of the proceeds of the execution.

(ii) As regards availibility of witnesses as to his claim.

2. The notice fixing date of trial of appeal has been
issued by appellant’s attorney and docs not comply
with section 6 of Government Notice No. 2255 of 1928
as amended.”

After hearing argument the Native Comrnissioner overruled
the objection and plaintiff has appealed against this ruling on
the ground that on a true construction of the Laws and Regu-
lations applicable to appeals from Chiefs’ Courts the objection
taken to the hearing of the appeal was valid and should have
been upheld.

In this judgment, the term “the Act” means the Native
Administration Act, No. 38 of 1927, as amended, and the term
“the regulations” means the rules for Chiefs’ Civil Courts as
promulgated by Government Notice No. 2255 of 1928 which
was in force when the appeal in the present case was noted.

Section 5 of the regulations requires a party desiring to
appeal against any judgment or order of a Chief’s Court to notify
the Chief or his representative of his intention and lodge his
appeal in person with the Clerk of the Native Commissioner’s
Court within thirty days from the date of pronouncement of the
Chief’s judgment or order.

In the present case, it is not understood why the notice of
appeal was served on the defendant instead of on the Chief or
his representative as required by the rules.

Section 6 of the regulations provides that the Clerk of the
Court with whom such appeal is lodged shall record the infor-
mation of the appellant in regard to the claim before the Chief
and the judgment thereon and shall thereupon fix a day for the
hearing of the appeal, notify the appellant and also issue a notice
for service on the respondent. Appellant may serve this notice
on the respondent personally or he may request that it be
served by the Messenger upon payment to the Clerk of the
Court of the fees prescribed.

The Native Commissioner, in his reasons for judgment, states
that section 6 of the regulations requires that the Clerk of the
Court shall fix a date for the hearing of the appeal and notify
the appellant and the respondent accordingly. This is incorrect.
The Clerk of the Court is required to fix a day for the hearing
of the appeal and notify the appellant and issue a notice to the
respondent but, before the appeal can be heard, appellant is
required either to obtain the notice from the Clerk of the Court
and serve it on the respondent or make the necessary arrangements
for it to be served by the Messenger. In this case, the notice
was not served on plaintiff, so defendant failed to carry out the
duty imposed upon him by this regulation.

Section twelve (4) of the Act provides that if appellant has
noted his appeal in the manner and within the period prescribed
by regulation under sub-section (6), the execution of the judgment
shall be suspended until the appeal has been decided (if it was
prosecuted at the time and in the manner so prescribed) or
until the expiration of the last-mentioned period if the appeal
was not prosecuted within that period, or until the appeal has
been withdrawn or has lapsed. It is clear from this that the
Act contemplated that a time should be fixed for the prose-
cution of the appeal although provision for this was not made
in the regulations.

The Native Commissioner states “ But my reading of section
twelve (4) of the Act is simply this that execution of the judgment

222

shall be suspended until the appeal has been decided if it was
prosecuted at the time and in the manner prescribed by sections
5 and 6 of the regulations or if he did not note the appeal
within the prescribed period of 30 days the execution is only
suspended until the expiration of the 30 days.” It is difficult
to understand on what grounds he has made the last portion of
this statement because there is no provision for the suspension of
execution if an appeal is not noted. Section twelve (4) merely
provides for the suspension of the execution of a judgment if

Section twelve (4) of the Act provides that the suspension
of execution shall continue until the appeal is decided or until
the expiration of the period prescribed for its prosecution if
it was not prosecuted within that period or until the appeal has
been withdrawn or has lapsed. The Native Commissioner states
“ it is only if the appellant fails to appear and prosecute his
appeal on the day so fixed that the appeal can be held to have
lapsed for want of prosecution ”. But if appellant failed to
appear on the day fixed for the hearing of the appeal, the
Native Commissioner could either postpone it to a later date
or dismiss the appeal. If he adopts the latter course, the appeal
has been decided and cannot be held to have lapsed. On the
day fixed for hearing of the appeal the matter would be before
the Court which would have to take some action whereas the word
“ lapse ” is defined in Bell’s legal dictionary as meaning “ to
pass away; to become void ”.

Section 6 of the regulations requires the Clerk of the Court
to fix a day for the hearing of the appeal and notify the appel-
lant but this does not mean that the latter can remain inactive
until he receives such notification. Before the appeal can be
heard, he has to make arrangements for the serving of the
notice on respondent. It is thus his duty, if he is not notified of
the day of hearing by the Clerk of the Court, to request the
latter to fix the day so that notice can be served on the
respondent.

The regulations do not prescribe a period for the prosecution
of an appeal, at the expiration of which such appeal would
lapse, but it is clear that section twelve (4) of the Act contem-
plates that such a period should be fixed. In deciding whether
the appeal lapsed on appellant’s failure to carry out the duty
imposed upon him by section 6 of the regulations, we are
guided by the following passage on page 198 of Maxwell’s
Interpretation of Statutes (9th edition) : “ In determining either

the general object of the Legislature, or the meaning of its
language in any particular passage, it is obvious that the inten-
tion which appears to be most in accord with convenience,
reason, justice, and legal principles should, in all cases of doubt-
ful significance, be presumed to be the true one.” It is in
accord with convenience, reason, justice and legal principles
that litigation should be brought to finality as expeditiously as
possible and, in our view, the appeal must be regarded as having
lapsed when defendant failed, within a reasonable time, to carry
out the duty imposed upon him by section 6 of the regula-
tions in regard to the serving of the notice on plaintiff.

Without fixing a period for the prosecution of an appeal
(this being the function of the legislature) we hold that the
appeal had lapsed in September or October, 1951 when the
judgment was executed and the notice of trial was issued by
defendant’s attorney.

The appeal is allowed with costs and the judgment of the
Native Commissioner altered to read; — “Objection to the
hearing of the appeal from the Chief’s Court is upheld with
costs.”

Wilbraham and Holdt (Member): Concur.

For Appellant; Mr. L. D. Crowther, Ngqeleni.

For Respondent; Mr. H. H. Birkett, Port St. Johns.

223

SOUTHERN NATIVE APPEAL COURT.
GWAJI V. SODEM.

N.A.C. Case no. 33 of 1952.

Port St Johns; 26th September, 1952. Before Warner, Acting
President; Wilbraham and Holdt, Members of the Court.

PONDO CUSTOM.

Pondo Custom — Dowry — Refund on Dissolution of Union —

Wedding Outfit — Deduction in Respect of.

Appellant’s (Plaintiff in the Court below) wife deserted him.
Refund of the dowry was claimed— this was duly refunded by
respondent less two head of cattle — one in respect of “ the
woman’s services ” and the other in respect of the wedding
outfit supplied. Appellant sued for the return of this beast
but was unsuccessful.

The appeal is against the Court’s ruling that a wedding outfit
provided becomes the sole property of the wife and that whether
she does or does not take it away with her upon desertion of
her husband a beast must be allowed as a deduction upon refund
of the dowry.

Held:

(1) That the father of a woman deserting her husband and

taking with her the wedding outfit, is not entitled when
returning the dowry to deduct a beast in respect of
such wedding outfit.

(2) That gifts of clothing at the time of marriage are not
included in the wedding outfit.

(3) That if a woman deserting her husband took her personal
clothing but left the other gifts, her father could then
deduct a beast when refunding the dowry.

Appeal succeeds.

Cases cited: Sihoyo v. Mandobe, 1941 N.A.C. (C. & O.), 5.

Appeal from the Court of the Native Commissioner, Ngqeleni.

Warner, Acting President:

It is common cause that plaintiff married defendant’s daughter
by native custom and paid nine head of cattle and a horse as
dowry. Plaintiff’s wife deserted him and returned to defendant
who then refunded eight head of cattle to plaintiff being
restoration of dowry paid, less two head of cattle as deductions —
one in respect of the woman’s services and one in respect of
the wedding outfit supplied. There was no pregnancy as a result
of the marriage.

Plaintiff in his summons stated that when his wife deserted
she took with her the wedding outfit which had been provided
and that is was with defendant so that the latter had no right to
deduct a beast in respect of this outfit when restoring the
dowry. He therefore claimed delivery of one beast or its value
£9 and costs.

In his plea, defendant denied that the woman took the wedding
outfit with her when she returned to his kraal.

When the matter came before Court, the Assistant Native
Commissioner without hearing evidence held that the wedding
outfit is a personal gift to the woman and belongs to her and
can be used or disposed of by her as she pleases so that defendant
was entitled to deduct a beast in respect of the wedding outfit
whether the woman took it with her to defendant’s kraal or
whether she left it at plaintiff’s kraal. He therefore entered
judgment for defendant.

224

Plaintiif has appealed against this judgment on the ground
that the Native Commissioner erred in ruling that a wedding
outfit provided becomes the sole property of the wife and that
whether she does or does not take it away with her upon
desertion of her husband, a beast must be allowed as a deduction
upon refund of dowry in respect of her marriage.

The Native Commissioner does not quote any authority for
his statement that a wedding outfit is a personal gift to the
woman and can be used by her as she pleases.

The question has been put to the Native Assessors who have
given the following unanimous opinion: —

“ If a woman deserts her husband and takes with her the
wedding-outfit, her farther is not entitled, when returning
the dowry to deduct a beast in respect of such wedding-
outfit.

Gifts of clothing at the time of marriage are not included
in the wedding-outfit. Such article.^ are the personal
property of the woman.

If a woman, on deserting her husband, took her personal
clothing but left the other gifts her farther could then
deduct a beast when refunding the dowry.”

This expression of opinion is accepted as being consistent
with that which was given and accepted by the Court in the case
of Sihoyo v. Mandobe, 1941 N.A.C. (C. & O.) 5.

It follows, therefore, that plaintiff has a cause of action and
the case should be tried on its merits.

The appeal is allowed with costs, the judgment of the lower
Court is set aside and the record is returned for furher hearing.

Wilbraham and Holdt, members, concur.

Opinion of Native Assessors.

Names of Assessors. Tribe.

Tolikana Mangala Pondo

Lumaya Langa Pondo

Mdabuka Mqikela Pondo

Nombekile Libode Pondo

Sinyokobede Ndevu Pondo

Question: A man married a woman and paid
horse as dowry. She deserted him and took with her, her
wedding outfit. She then rejected her husband and 8 cattle
were keta-ed the father retaining one beast for services of the
woman and one for the wedding outfit. In these circumstances
is the father entitled to deduct one beast for the wedding outfit?

Answer (per Tokikana Mangala): No. A beast may not be
deducted for the wedding outfit.

The others agree.

Question (per Mr. BirkeH): Part of the wedding outfit is
clothing. When a woman leaves her husband, can she go away
with the clothing?

Answer (per Mdabuka): Gifts of clothing at the time of
marriage are not included in the wedding outfit, such articles are
the personal property of the woman.

Question: If she leaves the rest of the gifts (not personal
clothing, etc.), would her father have to refund a beast for the
wedding outfit?

Answer (per Mdabuka): No. He could then deduct a beast
for the wedding outfit.

Other assessors agree.

For Appellant: Mr. L. D. Crowther: Ngqeleni.

For Respondent: Mr. H. H. Birkett: Port St. Johns.

District from.

Libode
Flagstaff.
Lusikisiki
Ngqeleni
Port St. Johns.

9 cattle and one

225

NORTH-EASTERN NATIVE APPEAL COURT.

ZULU V. MCUBE.

N.A.C. Case No. 57/52.

Vryheid: 29th September 1952. Before Steenkamp, President;
Balk and McCabe, Members of the Court.

ZULU CUSTOM.

Native Customary Union — Refund of lobolo — Previous civil
marriage with another woman subsisting when lobolo paid.
Summary: Appellant sued respondent for the refund of lobolo
paid for respondent’s sister, who jilted appellant before the
union was solemnised. An allegation that at the time appellant
paid the lobolo he was married by civil rites to another
not properly canvassed in the Native Commissioner’s Court.
Held: That as neither party was legally represented in his Court,
the Native Commissioner should have elicited from plaintiff
whether it is true that a civil marriage subsisted between him
and another woman at the relevant time.

Held: Further that as the evidence stands that aspect is not
clear and that the Native Commissioner’s judgment should be
set aside and the record of proceedings returned to him for
such further evidence as either party may wish to adduce in
regard to the alleged illegality and thereupon for a fresh
judgment.

Cases referred to:

Mlaba v. Ciliza 1 N.A.C. (N.E.) 391.

Appeal from the Court of the Native Commissioner, Mahla-
batini.

Steenkamp (President): —

In the Native Commissioner’s Court the plaintiff (now respon-
dent) sued the defendant (now appellant) for twelve head of
cattle plus £28, being refund of lobolo he had paid in respect
of defendant’s sister. Eldah, who had jilted plaintiff before a
customary union had been solemnised.

Defendant’s plea is to the effect that plaintiff and Eldah
were legally married and that they have not been divorced.
He also pleads that if the Court declares the union to be null
and void defendant only knows of seven head of cattle and £15
which were paid to him by the plaintiff.

The Native Commissioner gave judgment for plaintiff for
nine head of cattle and £10 with costs.

An appeal has been noted to this Court on the grounds that
the judgment is against the weight of evidence and the law.

An application dated the 26th July, 1952, notice of which was
duly served on plaintiff, was made today to this Court to allow
the appellant to found his appeal on the additional and special
ground that respondent was not entitled to claim a refund of
any lobolo he may have paid for the woman, Eldah, because
he had already been married to another wife by Christian rites
and lobolo was paid in furtherance of an illegal object, viz.
the contracting thereafter of a customary union.

Regarding this additional ground of appeal it should be pointed
out that the question of a previous civil marriage between
plaintiff and another woman was considered by the Native
Commissioner. In his reasons for judgment he mentions that it
is common cause that the plaintiff was married to another woman
according to Christian rites. This conclusion of the Native

Commissioner is not supported by the evidence, but that is a
matter to be dealt with separately. At this stage it is sufficient

226

to state that the question was apparently considered by the
Native Commissioner and therefore the additional ground of
appeal should be allowed, especially as a proper notice of the
application has been given to the respondent.

If it is true that at the time the plaintiff entered into
nagotiations with the defendant for a customary union with
Eldah, a civil marriage existed between himself and another
woman, then the payment of lobolo was for an immoral purpose.
This question was decided in no uncertain way in the case of
Mlaba v. Ciliza 1 N.A.C. (N.E.) 391, in which various other
authorities were quoted.

The only evidence we have in this respect is that of the
defendant where he states: —

“ He (meaning plaintiff) said he wanted to marrv by
customary union because he married his first wife according
to Christian rites ”,
and again

“ He (meaning plaintiff) said he did not require an
official witness as he is married by Christian rites ”.
Court below and the Native Commissioner should have elicited
from plaintiff whether it is true that a civil marriage subsisted
between him and another woman at the relevant time. As the
evidence stands this aspect is not clear.

In my opinion therefore the appeal should be allowed with
costs, the Native Commissioner’s judgment should be set aside
and the record returned to him for such further evidence as
either party may wish to adduce in regard to the alleged ille-
gality, and thereupon for a fresh judgment.

Balk (Permanent Member): I concur.

McCabe (Member): I concur.

For Appellant: Mr. A. G. Turton of Messrs. Guy, Turton and
Hannah.

Respondent in person.

NORTH-EASTERN NATIVE APPEAL COURT.

DHLONGOLO v. DHLONGOLO.

N.A.C. Case No. 76/52.

Vryheid: 1st October, 1952. Before Steenkamp, President;

Balk and McCabe, Members of the Court.

LAW OF PROCEDURE.

Appeal against Chief’s judgment — Chief’s judgment to be on
record in Native Commissioner’s Court before appeal on such
judgment can be heard — Chief’s reasons likewise to be on record
except where it is not possible to obtain such reasons — Chiefs’
Courts Rule No. 11 (3).

Summary: Before the Native Commissioner’s Court, on appeal
from a judgment in a Chief’s Court, the parties admitted
that the judgment in the Chief’s Court was incorrectly
recorded and that plaintiff actually had four claims, and
the Native Commissioner allowed plaintiff’s claim to be
amplified.

The Native Commissioner, notwithstanding the fact that
the Chief’s judgments, if any, on the additional three claims
were not on record before him, adjudicated thereon.

Held: That unless the Chief agreed that he had adjudicated
on all four claims the admissions made by the parties
cannot be accepted as reflecting the true judgment of the
Chief.

Ill

Held: Further that there is no provision whereby a Native
Commissioner’s Court may proceed with the hearing of an
appeal without being in possession of the Chief s judgment.

Held: Further that a Native Commissioner’s Court may only
exercise its discretion and proceed with the hearing an
appeal without the reasons for judgment of the Chief being
on record, as provided in Chiefs’ Courts Rule 1 1 (3), where
it is not possible to obtain such reasons.

Statutes, etc. referred to:

Chiefs’ Courts Rules Nos. 6 (1), 10, 12 and 11 (3).

Appeal from the Court of the Native Commissioner,
Paulpietersburg.

Steenkamp (President):

The late Madetshane had at least six wives and he established
two sections, viz. the Indhlunkulu and the Ikohlo.

The Indhlunkulu wife was Kantsungulu 1 and to that House
were affiliated Kantsungulu II, the second wife married and
Gaplovunga the fifth wife married. The Ikohlo wife was
Gamgogo and to her section were affiliated the fourth and
sixth wives married.

Plaintiff is the eldest son and heir to the Ikohlo section and
defendant is the eldest son and heir to the Indhlunkulu
section. In the Indhlunkulu section there was a son named
Maliba born out of Kantsungulu II, i.e. the second wife married
by the late Madetshane. Defendant first denied that Maliba’s
mother was affiliated to the Indhlunkulu section but afterwards
admitted it.

When defendant married his second wife nine head of cattle
from the Ikohlo section were advanced for the payment of his
lobolo. These cattle therefore became refundable to that House.

When Maliba married his first wife eight head of cattle were
advanced by the Ikohlo section for the payment of his lobolo,
and again when he took his second wife seven head of cattle
were advanced by the Ikohlo section. Maliba left no sons but
three daughters. The property rights in these three girls accrued
to the Indhlunkulu section.

Before the Chief the plaintiff i.e. the heir in the Ikohlo section
sued the defendant i.e. the heir in the Indhlunkulu section. The
claims, as amplified before the Native Commissioner, are as
follows: —

(fl) Four head of cattle being the balance still owing out of
the nine head of cattle advanced to defendant as lobolo
for his second wife.

(b) Two head of cattle advanced by the Ikohlo to defendant

when he married his first wife, and which cattle were
slaugtered at the marriage ceremony.

Maliba when he married his first wife.

(d) Seven head of cattle advanced by the Ikohlo to Maliba
when he married his second wife.

The Chief gave judgment in favour of defendant with costs.

Plaintiflf appealed to the Native Commissioner, but the claim
as set out by the Chief in his reasons for judgment only
mentions four head of cattle which defendant used as lobolo
for his second wife.

When the case was heard by the Native Commissioner and
before any evidence was led the plaintiff, through his attorney,
informed the Court that the judgment in the Chiefs Court was
incorrectly recorded and that plaintiff actually had four claims.
The defendant admitted this and plaintiff’s claim was then
amplified (as already set out above).

Defendant’s plea before the Chief was “Not liable Cattle
have been repaid ’’. Before the Native Commissioner the plea

228

was more explicit and reads to the effect that on —

claim (a) all nine head of cattle have been repaid;

claim (b) only one beast was advanced by his father, which
he is not supposed to return;

claim (c) admits the cattle were paid by plaintiff’s house i.e.
the Ikohlo house, but as he is not Maliba’s general heir
he denies liability;

claim {d) defendant denies liability as he is not Maliba’s
general heir.

After evidence was heard the Native Commissioner upheld
the appeal from the judgment of the Chief’s Court and altered
that judgment to one for plaintiff as claimed on all counts with
costs.

An appeal against the whole judgment has now been noted
to this Court on the following grounds: —

(1) (a) That the Court erred in admitting three additional

claims contrary to Rule 12 of the Chiefs’ and Head-
mens’ Civil Courts Regulations.

(b) ALTERNATIVELY : The Court erred in not calling
upon the Chief to furnish his reasons in terms of
Rule 11.

(2) That the Appeal Notice against the Chief’s judgment is

defective in that it did not set out the particulars of the

claim as provided for in Rule 10 read with Rule 6 (1) (c).

(3) ALTERNATIVELY : That the Court erred in not amen-

ding the Appeal Notice against the Chief’s judgment to—

(a) include Claim No. 1.

(b) include Claims Nos. 2, 3 and 4.

(4) That defendant showed that he did return eight head

of cattle.

(5) (a) That in any event defendant is not liable to return

under Native Law and custom the two head of
cattle slaughtered at his wedding.

(b) That sufficient evidence was not brought to show

that defendant is liable to return the cattle advanced
to Maliba.

(6) That defendant should have been given an opportunity to

call further witnesses.

Counsel for appellant contended that as according to the
Chief’s judgment and reasons for judgment, the claim before
him was in respect of four head of cattle, as mentioned in
claim (a) above, and as there is no indication that he adjudicated
on the other three claims i.e. (b), (c) and (d), the Native Com-
missioner could not consider these claims as a Court of appeal
from the Chief’s Court.

Counsel for respondent has strongly urged that both plaintiff
and defendant agreed before the Native Commissioner that the
judgment of the Chief’s Court was incorrectly recorded and that
plaintiff actually had four claims in the Chief’s Court, and that
therefore the argument now raised by appellant’s Counsel is of a
technical nature.

This Court however holds the view that unless the Chief
agreed that he had adjudicated on all four claims, the admis-
sions made by the parties cannot be accepted as reflecting the
true judgment given by the Chief. This Court is entitled, as
also was the Native Commissioner’s Court, to have on record
the Chief’s judgment on all four claims and also his reasons
for judgment, unless the Native Commissioner exercises his
discretion and proceeds without such reasons as laid down in
Rule 11 (3) of the Chiefs’ Courts Rules, which only applies
where it is not possible to obtain such reasons. There is
certainly no provision whereby a Native Commissioner’s Court
may proceed with an appeal without being in possession of the

229

Chief’s judgment. In so far as we know the Chief might not have
given a judgment on claims (h), (c) and (d) and therefore no
appeal can he until he has done so.

It is my view that the proceedings in the Native Commissioner’s
Court concerning claims (b), (c) and (d) should be set aside and
it does not become necessary to deal with the evidence and other
points raised regarding these three claims.

Regarding claim (a), in which the Native Commissioner upheld
the appeal from the Chief’s Court, and altered the judgment to
one for four head of cattle, it is only necessary to deal with
this very briefly. Ground 4 of the Notice of Appeal mentions
that defendant showed that he did return eight head of cattle.
Counsel for appellant during the course of his argument sugges-
ted that two head of cattle slaughtered at plaintiff’s wedding
were included in the eight returned.

The evidence adduced on behalf of plaintifl, and which the
Native Commissioner accepted, is that defendant borrowed nine
head of cattle and that he only returned five to the Ikohlo
house, leaving a balance of four yet to be returned. Defendant’s
own witness Aaron states that only five head of cattle were
repaid. He however states that only six head were borrowed,
but defendant states nine head were borrowed. Defendant’s
other witness also mentions that nine head were borrowed, but
he states that in actual fact only five were returned to the
plaintiff.

If only five were returned then defendant still owes four head
of cattle and plaintiff is entitled to judgment for this number.
The cattle slaughtered at defendant’s wedding form the subject
of a separate claim, namely claim (b).

In my opinion the appeal in respect of claim (n) should be
dismissed and the appeal regarding claims (f>), (c) and (d) should
be allowed, and the proceedings and judgment in the Native
Commissioner’s Court concerning these claims should be set
aside.

Appellant has succeeded substantially in this Court and he
is entitled to costs of appeal.

Costs in the Native Commissioner’s Court to be borne by
defendant.

Balk (Permanent Member): 1 concur.

McCabe (Member): I concur.

For Appellant: Mr. H. B. Myburgh of Messrs. Bennett &
Myburg.

For Respondent: Mr. du Toit of Messrs. S. E. Henwood & Co.

NORTH-EASTERN NATIVE DIVORCE COURT.

MTIYANE V. MTIYANE.

N.D.C. Case 274 of 52.

Pietermaritzburg: 7th October, 1952. Before Steenkamp, Presi-
dent.

COMMON LAW.

Jurisdiction-Native Divorce Court — Claims for orders compel-
ling defendant to transfer immovable property to plaintiffs
name, placing her under guardianship, and concerning the
number of lobolo cattle returnable.

Summary: Plaintiflf claimed an order for restitution of conjugal
rights and in addition also claimed certain orders for the

230

transfer into her name of certain immovable property, the
placing of her under guardianship of her son-in-law and
that no lobolo cattle were returnable to defendant.

Held: That the Native Divorce Court has no jurisdiction to
deal with the additional claims and that they be deleted from
the prayer.

NATIVE DIVORCE CASE.

Steenkamp (President);

The parties in this divorce action were married by civil riles
on the 16th December, 1933. Community of property was
excluded by virtue of the provisions of section twenty-two (6) of
the Native Administration Act, No. 38 of 1927.

Plaintiff, in her summons avers that since 1919 she and defen-
dant lived together as man and wife and during the period from
that date until a date which is given as 9th March, 1935, i.e.
about fifteen to sixteen months after she had entered into the
civil marriage with defendant, certain immovable property was
purchased out of her earnings and transferred into defendant’s
name on 9th March, 1935. She also alleges in the summons that
between 1943 and 1951 she, out of her own enterprise earned a
considerable amount of money out of which she purchased further
land which was transferred into defendant’s name on 8th March,
1952.

In addition to her claim for restitution of conjugal rights and
for an order of forfeiture of benefits introduced into the mar-
riage, plaintiff also claims:

(1) an order that she is entitled to transfer into her name the

immovable property already mentioned;

(2) an order that plaintiff shall be under the guardianship

of Absolom her son-in-law; and

(3) an order that no lobolo cattle be returned by plaintiff’s

guardian to the defendant.

After hearing Counsel for both parties the Court held that
it had no jurisdiction to deal with the additional claims and
ordered that they be deleted from the prayer.

In any case prayer (2) is something foreign to common law
and peculiar to Native law, i.e. it is only when the dissolution
of a customary union is sought that the Court having jurisdic-
tion, i.e. the Native Commissioner’s Court concerned, is called
upon to deal with the furture guardianship of a Native woman,
vide, section eighty-three of the Natal Code of Native Law.

Prayer (3) is a matter between the lobolo holder and the hus-
band and no claim for the forfeiture of lobolo may be consi-
dered in an action for divorce between the woman and her
husband. Furthermore, it is also a matter foreign to common
law and peculiar to Native law and is thus not cognisable by this
Court which, as is clear from the statute creating it, is purely a
Court of Common law matrimonial causes with no jurisdiction
in matters peculiar to Native law.

Dealing with prayer (1) if section ten (1) of Act No. 9 of 1929.
as amended by Act No. 56 of 1949, is referred to, it will be found
that the Native Divorce Court is granted jurisdiction to hear
and determine suits of nullity, divorce and separation between
Natives in respect of marriages and to decide any question
arising therefrom.

This Court has in the past made an order of forfeiture of
benefits and has also made orders concerning the custody of the
children, but in no way has it concerned itself as to what
specific property belongs to the respective parties.

In the instant divorce proceedings the plaintiff asks this Court
to hear evidence and determine whether the property in question
belongs to her.

This Court does not possess inherent jurisdiction and must,
in dealing with divorce proceedings, confine itself to the wording
of the Act which grants the jurisdiction. Can it be said in

231

determining a suit of divorce, the Court has been granted
jurisdiction to hear evidence and determine whether the property
concerned was acquired out of the earnings of the party who
seeks relief? 1 do not think that this aspect is covered by the
statute in question as the matter is not ancillary as for instance
is an order for the forfeiture of benefits arising from the marriage
or an order for the custody of the children of the marriage.

If, after a divorce is granted, the woman i.e. plaintiff claims
that she is the owner of certain property in possession of her
ex-husband, then it will be competent for her to, bring a suit
against him in the Native Commissioner’s Court for a declara-
tion of ownership.

For Plaintiff: Mr. D. B. Davies of Messrs. J. Fraser & Co.

For Defendant: Adv. J. H. Niehaus, i/b Messrs. Randles &
Davis.

SOUTHERN NATIVE APPEAL COURT.

NDZONDZA V. WILLEM.

N.A.C. Case No. 34 of 1952.

Kokstad: 13th October, 1952. Before Warner, Acting Presi-
dent; Cockroft and Strydom, Members of the Court.

NATIVE LAW AND CUSTOM

Marriage according to Native Custom — Desertion — Duty of
Husband to Putuma-Dowry — Return of Dowry compellable
only on Fulfilment of Certain Conditions — Dowry not Return-
able if Wife has died — Practice and Pracedure — Form of Judg-
ment Delivered.

Appellant (Plaintiff in tlie Court below) sued respondent
(defendant in the Court below) for return of certain dowry

paid to respondent for his (respondent’s) daughter Nokwenzani,
the latter it was alleged having deserted appellant.

Appeal against the Court’s judgment of “ action dismissed with
costs ”.

Held:

(1) That when a woman leaves her husband’s kraal it is

his duty to look for her first and it is essential for
the woman to be produced to her people before the
husband can claim the return of his dowry.

(2) That only after the wife has, when putumaed, refused

to return to her husband is an obligation cast on her
father to persuade her to return or to restore the
dowry.

(3) That plaintiff has failed to shew that after his wife deserted

him for the last time he reported to her father, that
she refused to return to him and that defendant failed
to persuade her to do so.

(4) That as plaintiff admitted that he had received a report

that his w'ife had died and as defendant brought evidence
(which was not disputed) to shew that the wife had
died, plaintiff is not entitled to the return or refund
of dowry which is what was asked for the summons.
Cases referred to:

Mampeyi v. Rarai 1937, N.A.C. (C. & O.), 148.

Sibovana v. Dlokova 1951, N.A.C. (S.D.), 281.

232

Appeal from the Court of the Native Commissioner, Mount
Fletcher.

Warner (Actg. President):

Plaintiff sued defendant for the restoration of his wife,
Nokwenzani failing which, for return of 12 head of cattle paid
as dowry for her. In his particulars of claim, he stated that
Nokwenzani deserted him in March, 1945 and although
“ putumaed ” by plaintiff had not returned to him.

In his plea defendant admitted that his daughter Nokwenzani
had been married by native custom to plaintiff but stated that
he had received 8 head of cattle and one horse on account of
dowry and not 12 head as stated by plaintiff. He admitted that
Nokwenzani had left plaintiff’s kraal and stated that this was
due to ill-treatment by plaintiff. He also stated that in or
about September, 1950, plaintiff’s wife died in Port Shepstone or
thereabouts.

to her people before the husband can claim the return of his
dowry.

After hearing evidence the Native Commissioner entered
judgment of “ action dismissed with costs ”.

Plaintiff has appealed against this judgment on the grounds
that it is against the weight of evidence and contrary to law
in that, by Native Law, upon the desertion of the wife, the
father — the dowry holder — became liable to return the woman
or the dowry paid.

The Assistant Native Commissioner has found as a fact that
Nokwenzani died at Port Shepstone in 1950 and it has not been
shewn to us that he was wrong in doing so. If the woman is
dead, it means that it would be impossible for defendant to
comply with plaintiff’s claim and judgment could not be given
for plaintiff for the return of his wife.

In the case of Mampeyi v. Rarai 1937, N.A.C. (C. & O.), 148,
the Court accepted a statement by the Native Assessors that
when a woman leaves her husband’s kraal it is his duty to
look for her first and it is essential for the woman to be produced
to her people before the husband can claim the return of his
dowry.

In the case of Sibovana vj. Dlokova 1951, N.A.C. (S.D.), 281,
it was stated that the underlying principle is that the matter pri-
marily concerns the husband and it is only after the wife has
refused to return to her husband that an obligation is cast on her
father, on a report being made to him, to persuade the wife to
return or to restore the dowry.

In the present case it is common cause that plaintiff’s wife
deserted him on several occasions and went to defendant’s kraal
and when plaintiff fetched her she returned to his kraal. In his
evidence plaintiff stated “The last time I went to putuma my
wife she was not at her father’s place. This was in 1946.
Defendant said he did not know where she was. He said that
he had last seen her when she was returned to my father at our
kraal. He said she had not returned to his kraal after that. From
then I did nothing to get my wife back except searching for her.
I have never seen or heard of her since then.’’ These statements
corroborate defendant’s evidence that he returned the woman to
plaintiff’s kraal on each occassion when she deserted to his
(defendant’s) kraal.

Plaintiff has thus failed to shew that, after his wife deserted
him for the last time, he reported to defendant that she refused
to return to him and that defendant failed to persuade her to
do so.

Plaintiff admitted that he received a report that his wife had
died. He does not appear to have made investigations with a
view to ascertaining whether the report was true but issued
summons for the return of his wife or refund of dowry. Defen-
dant brought evidence to show that the woman died at Port
Shepstone and this has not been contradicted.

233

If the woman is dead, plaintiff is not entitled to her return
or refund of dowry which is what he has asked for in his
summons.

The judgment given was “ action dismissed with costs This
is equivalent to an absolution judgment (Manqume v. Tole 1950,
N.A.C. (S.D. 222), but the judicial officer’s attention is invited
to the provisions of section 54 of Government Notice No. 2886
of 1951 which do not provide for a judgment being given in the
words used by him.

The appeal is dismissed with costs.

Cockcroft and Strydom (members): Concur.

For Appellant: Mr. Eagle, Kokstad.

For Respondent: Mr. Walker, Kokstad.

CENTRAL NATIVE AJPPEAL COURT.

KUMALO V. SMUT N.O.

N.A.C. Case No. 27/52.

Johannesburg: 14th October, 1952. Before Marsberg, President,

Rein and Venter, Members of the Court.

PR AC I ICE AND PROCEDURE.

Practice and procedure: Sale of land.

Plaintiff sued defendant in his capacity as representative in
the estate of the late Emma Tunzi for an order compelling
defendant to transfer Lot 1372, Evaton Township, into pjaintiff’s
name. It was alleged that the property was bought in 1913
from Emma Tunzi who died in 1915. At the trial a Deed of Sale
was not produced and it transpired that Lot 1372 had been
transferred to William Tunzi in the Deeds Registry on 25th
September, 1945. At the close of plaintiff’s case a native commis-
sioner’s court gave judgment of absolution from the instance.
Plaintiff appealed on the grounds that the judgment was against
the evidence and was bad in law. Application was also made for
review of proceedings by reason of the fact that the judicial
officer who presided at the trial should have recused himself on
the ground that he imported into the conduct of the trial, facts
and matters concerning the parties and their witnesses of which
he had previous knowledge.

Held: That the cause of action had became prescribed.

Held further: That proof of the alleged sale had to be evidenced
before the Native Commissioner by a written instrument and
parol evidence was not admissible.

Held further: That the property claimed was not an asset in
the estate so that there was no privity between defendant
and plaintiff on the claim as framed in the summons.

Held further: That the allegation that a judgment is “ bad in
law ” is not a compliance with the rules.

Held further: That the terms of the application for review
were exceptionable as no allegation of irregularities should
be lightly made and supporting affidavits are prerequisites
and should accompany the application.

Statutes, etc. referred to:

Section thirty of Proclamation No. 8 of 1902 (Transvaal).

Appeal from the Court of the Native Commissioner, Vereeniging.

Marsberg, P., delivering judgment of the Court: —

In the Native Commissioner’s Court at Vereeniging plaintiff,
Harold Hubert Tembu Kumalo, in his capacity as the Executor

234

Testamentary in the estate of the late Lucy Kumalo, sued
defendant Johannes Gerhardus Smit in his capacity as the
representative in the estate of the late Emma Tunzi for an
order compelling the defendant to effect the registration of the
transfer of certain property, being Lot No. 1372, Evaton Township,
into plaintiff’s name.

The particulars of claim allege: —

During or about 1913 the said Emma Tunzi sold Lot
No. 1372, Evaton Township, to Lucy Kumalo for the sum
of £50. A formal Deed of Sale was drawn between the
parties and the total purchase price was paid.

At the time of her death in 1915 the said Emma Tunzi
had failed to effect transfer of the said Lot No. 1372 into
the name of the said Lucy Kumalo.

Lucy died on 26th June, 1949.

At the end of evidence given for plaintiff the Native Commis-
sioner decreed absolution from the instance. Plaintiff had con-
ducted his case in person. Plaintiff, now represented by Mr. H.
Helman, has appealed against the judgment and applied for review
in the following form: —

Please take notice that the plaintiff hereby notes an
appeal against the judgment delivered on the 29th May,
1952, wherein plaintiff’s action was dismissed, on the grounds
that the said judgment —

(a) Was against the evidence and the weight of the
evidence;

{b) Bad in Law.

The full grounds as to why the said judgment is bad
in law will be extended in a supplementary Notice when
the Reasons for Judgment, which have been applied for,
have been received from the judicial officer.

Application will also be made to review the proceedings
by reason of the fact that the judicial officer who presided
at the trial of this action should in fact have recused
himself on the ground that he imported into the conduct of
the trial, facts and matters concerning the parties and/or
their witnesses of which he had previous knowledge. His
introducing such facts and extraneous knowledge into the
conduct of this trial constituted an irregularity. Affidavit
will be forwarded in due course.

As paragraph {b) of the grounds of appeal and the application
for review do not comply with the Appeal Court rules, they fall
away. The only point in the notice of appeal left for our
consideration is that the judgment was against the evidence and
the weight of evidence.

We are somewhat surprised that a notice of appeal has been
lodged. It is clear from the record —

(a) that the cause of action arose in 1913, that is 38 years

before issue of summons, and long over the period of
prescription. Though defendant has not raised this point
he should have done so.

(b) By the provisions of Proclamation No. 8 of 1902 (Trans-
vaal). section 30 —

“ No contract of sale of fixed property shall be of
any force or effect unless it be in writing and signed by
the parties thereto or by their agents duly authorized
in writing.”

The evidence of plaintiff and his witnesses was that the alleged
deed of sale was burnt and a copy of it was stated to be in some
other person’s possession. Obviously proof of the alleged sale
had to be evidenced before the Native Commissioner by a
written instrument. Parole evidence was not admissible. The
deed was not produced.

233

At the time summons was issued the Lot was not an asset
in the estate of Emma Tunzi. There, therefore, appears to be no
privity between defendant and plaintiff on the claim as framed
in the summons.

With these disabilities plaintiff appears to have been ill advised
to take action and more particularly to bring the judgment of the
Native Commissioner on appeal and review. The notice of appeal
and review has obviously been, framed without due regard to the
facts of the case. No supplementary notice has been lodged
timeously as indicated. To allege that the judgment is “ bad in
law” is not a compliance with the rules.

The terms of the application for review are exceptionable.
No allegation of irregularities should be lightly made. Suppor-
ting affidavits are prerequisites and should accompany the appli-
cation. Without the supporting affidavits the application assumes
the character of an unwarranted reflection on the judicial officer.
It is, moreover, clear in this instance that the record itself contains
no grounds on which the imputations of irregularity could be
substantiated. Happily the request for review was not brought
up for consideration and we therefore make no further comment.

It seems purposeless to review the judgment on the grounds
that it is against the evidence and the weight of evidence. On
the facts placed before the Court by plaintiff, the Native Com-
missioner could give no other than the judgment which was
entered, fn view of the inherent disabilities to which we have
drawn attention we see no good reason to disturb the judgment.

The appeal is dismissed with costs.

Rein and Venter (Member): Concurred.

For Appellant: Mr. H. Helman of Messrs. Helman & Michel,
P.O. Box 3592, Johannesburg.

For Respondent: Mr. I. Maltz, i/b., Messrs. Smit & Malan,
Vereeniging.

SOUTHERN NATIVE APPEAL COURT.

MBONISWA AND ANOTHER v. MBONISWA.

N.A.C. Case No. 35 of 1952.

Kokstad: 14th October, 1952. Before Warner, acting presi-
dent; Cockroft and Strydom, Members of the Court.

COMMON LAW.

Natives estates — Three successive marriages by Christian Rites —
Devolution of estate property can be decided only if type of
marriage is known — Evidence — Best evidence rule production
of marriage certificates.

Late Tiyo S. Mboniswa was married thrice by Christian Rites,
he survived all his wives. The exact dates of the marriages were
not stated. He died intestate. Respondent (plaintiff in the
Lower Court and the only son by the first wife) sued appellants
successfully in Chief Makaula's Court for delivery of dowry
paid for deceased’s daughter by the econd wife, and for the
return of sundry movable property of the deceased. He also
claimed guardianship of his half-sister liziwe a daughter by
deceased’s third wife. Mpses is the eldest son by deceased’s
second wife. Solomon is a younger brother of deceased.
An appeal was noted to the Native Commissioner’s Court in
terms of section 5 of Government Notice No. 2255 of 1928 on the
grounds that the Chief erred in granting judgment in favour
of Respondent.

236

The Native Commissioner ruled in terms of the decision given
in C. Mrasi and P. Juta v. A. Majavu (1932 N.A.C. 4) that the
children of the three wives of respondent’s father must be
regarded as belonging to one family and that respondent as
eldest son was heir according to Native Law and Custom and
entitled to succeed to his father’s estate, as he considered also
that in terms of section 2 (e) of Government Notice No. 1664 of
1929 the estate had to be administered according to Native Law.

The Appeal is against this finding of the Native Commis-
sioner’s Court.

Held:

(1) That as the respective marriage certificates had not been

produced it was not possible to determine whether the
deceased’s estate should be distributed as if he had been
a European. [Vide section 2 (c) (ii) of Government
Notice No. 1664 of 1929.]

(2) That in proof of the marriages the best evidence was

the production of the marriage certificates and that
secondary evidence was inadmissible until it be shewn
that production of primary evidence was out of the
party’s power.

(3) That it was essential to produce the marriage certificates

before the respective rights of respondent and appellants
could be determined as, if one of the marriages were in
community of property or under ante-nuptial contract
then it would seem that the property of that marriage
should devolve as if deceased had been a European in
terms of section 2 (c) (ii) of Government Notice No.
1664 of 1929, as amended.

(4) That the decision of the Native Commissioner was in

conflict with the diction in Ngcwayi v. Ngcwayi 1950
N.A.C. (S.D.) 231 regarding the status of a woman
married by Christian Rites.

Cases referred to:

C. Mrasi and P. Juta v. A. Majana, 1932, N.A.C., 4.

Rubushe v. Jijane P. H., 1952, (1) R. 11 P. 39.

Lourens v. Lourens, 1936, C.P.D., 353.

Njobe V. Njobe and Dube, N.O.., 1950 (4), S.A.L.R., 545.

Julia Shata v. Mocholo D. Shata, 1942, N.A.C. (C. & O.), 42.

Damane v. Damane, 1944, N.A.C., (C. & O.), 84.

Ngcwayi v. Ngcwayi, 1950, N.A.C., (S.D.), 231.

Tonjeni v. Tonjeni, 1947, N.A.C., (C. & O.), 8.

Statutes, etc., referred to:

Ordinance No. 72 of 1830 (Cape).

Proclamation No. 142 of 1910, Section five (1).

Act No. 38 of 1927, Sections five, fifteen, twenty-two, twenty-
three.

Government Notice No. 2255 of 1928.

Government Notice No. 1664 of 1929, as amended. Section 2.

Government Notice No. 2886 of 1951, section fifty-three (13).

Appeal from the Court of Native Commissioner, Mount
Frere.

Cockroft (Member):

Respondent, plaintiff in the Lower Court, sued appellants in the
Court of Chief W. S. Makaula for delivery of seven head of cattle,
dowry paid for the first daughter of his father’s second wife
Madlomo, three yokes, a planter, plough, four pots, personal
clothing and assegais, which were the property of respondent’s
deceased father. He also claimed guardianship of the girl
Liziwe, daughter of his late father by his third wife.

The Chief’s Court found that plaintiff as heir of the first
house was entitled to the seven head of cattle as Madlomo’s
dowry was paid out of his house and should be refunded.

237

As there was no male heir in her house, the girl Liziwe was
awarded to plaintifl. Ihe three yokes, personal clothes, planter
and assegais that belonged to FlaintifTs farther during his
mother’s lifetime were also awarded to plaintifl.

An appeal was noted to the Native Commissioner’s Court
in terms of section 5 of the Regulations framed under section
twelve of Act No. No. 38 of 1927 (Government Notice No. 2255
of 1928) against the whole of the judgment delivered by Chief
W. Maicaula on the grounds that the Chief erred in granting
judgment in favour of Respondent.

After hearing evidence, the Native Commissioner found
that the following facts were common cause or not disputed: —

1. The late Tiyo S. Mboniswa married three wives succes-
sively according to Christian Rites in the following order: —

(1) Mantolo (2) Madlomo. (3) Mabovu.

2. Johnson, hereinafter referred to as the plaintiff is the only

son by the first wife, Moses, first appellant is eldest son
by the second wife and Liziwe is the daughter by the
third wife.

3. Deceased left no will and made no allocation of his pro-

perty.

4. Deceased survived all his wives.

5. That the property, the subject matter of this dispute were

assets in the estate of the late Tiyo S. Mboniswa.

On these facts he came to the conclusion that, in terms of
section 2 (e) of G.N. 1664 of 1929, as amended, the property in
this estate falls to be distributed according to Native Custom.

The Native Commissioner considered that he was bound by the
decision in C. Mrasi and P. Juta v. A. Majane, 1932, N.A.C.
4 in which case the deceased also married three wives succes-
sively according to Christian Rites. There it was held that
there were no houses recognised by Native Custom as separate
establishments each having an heir and the gelding in dispute
fell to be dealt with under sub-section P) of section twenty-three
of the Native Administration Act, No. 38 of 1927, and as such
was capable of being devised by will.

He therefore came to the conclusion that the children of the
three wives of Respondent’s father must be regarded as belonging
to one family, and that the respondent, as the eldest son, was the
heir according to native law and custom and as such was entitled
to succeed to his late father’s estate.

Appellants have appealed against the whole of the judgment
delivered by the Native Commissioner on the following
grounds : —

1. That the late Tiyo Mboniswa’s estate has to be administered

according to native custom in accordance with which
custom all rights to dowry paid or to be paid in respect
of any daughters born to the deceased by his wife
Madlomo Mboniswa, belong to and were inherited by the
deceased’s eldest son by the said Madlomo, namely the
appellant Moses, who also under Native Custom inherited
all other property acquired by the deceased during the
subsistence of his marriage to Madlomo.

2. The Native Commissioner erred in coming to the conclu-

sion that the respondent, Johnston, can have any right to
the actual or prospective dowries of the deceased’s
daughters by Madlomo, white there are sons alive bom of
Madlomo.

3. Dowry disputes must in any event be decided by pure

Native Custom.

Mr. Zietsman for appellant, did not contest the correctness
of the Native Commissioner’s finding declaring plaintiff to be
the guardian of the girl Liziwe, and that part of the judgment
will stand. This must not be construed, however as a decision
of this Court that plaintiff will be entitled to her dowry.

238

The rest of the subject matter of the claim in this case
concerns a dispute as to the distribution of assets in the estate
of the late Tiyo S. Mboniswa.

In terms of section twenty-three (4) of the Native Administra-
tion Act, No. 38 of 1927, any dispute or question which may
arise out of the administration or distribution of any estate in
accordance with Native Law shall be determined by the Native
Commissioner.

The dispute could, therefore, in the firs! instant, have been
brought before the Native Commissioner in his administrative
capacity at tittle or no cost to the parties. It is not clear from the
record on what evidence the Native Commissioner came to the
conclusion that this estate did not fall under any of the classes
described in paragraphs (a), {b), (c), and (d) of section 2 of
Government Notice No. 1664 of 1929^ as amended, and thus in
terms of paragraph (c) of that section fell to be distributed
according to native law and custom.

In terms of paragraph (c) (ii) of section 2 of Government
Notice No. 1664 of 1929, as amended by Government Notice
No. 939 of 1947, if the deceased at the time of his death was a
widower of a marriage in community of property or under ante-
nuptial contract, the property shall devolve as if he had been
a European.

The only evidence on the record regarding the conjugal status
of the father of respondent and his three wives, was that of
respondent when he states; —

“ My father married my mother by Christian Rites.”
“My father married his second wife by Christian Rites”;
and that of the appellant Solomon Mboniswa when he says: —
“ Samuel married all his wives by Christian Rites. He
married his first wife before the first Great War.”

The best evidence of the marriages of the three wives, to
respondent’s father, namely, copies of the respective marriage
certificates, has not been produced. Vide section thirty-seven
of Ordinance No. 72 of 1830 (Cape), and Rubushe v. Jiyane
P.H. 1952 (1) R. 11 at page 29. Consequently it is not possible
to determine whether respondent’s father at the time of his
death was a widower of a marriage in community of property
or under ante-nuptial contract, in which case his property,
would, in terms of paragraph (c) (ii) of section 2 of Government
Notice No. 1664 of 1929, as amended, devolve as if he had
been a European.

The rule of law is that the best evidence must be produced
to the exclusion of any inferior evidence or information on the
point.

Secondary evidence is inadmissible until it be shewn that the
production of primary evidence is out of the party’s power.
(Scoble’s Law of Evidence in South Africa, second edition at
Page 20.)

In a matter such as divorce affecting status or the rights of
the children it is the practice of the Court to require the produc-
tion of the marriage certificate if such production is at all
possible. (Lourens v. Lourens, 1936, C.P.D. 353.) See also
Njobe V. Njobe and Dube N.O. 1950 (4) S.A.L.R. 545 regarding
the protection afforded to the parties as well as the issue of a
marriage out of community of property.

In the present action the production of the marriage cetifi-
cates of their father and his three wives is essential to determine
the respective rights of respondent and appellant Moses Mboniswa
in the estate of their late father. If any of the three marriages
were in community of property or under ante-nuptial contract,
then it seems that the property of that marriage should devolve
as if he had been a European, vide paragraph (c) (ii) of section
2 of Government Notice No. 1664 of 1929 quoted above.
In that event respondent would not be entitled to all the property
to the exclusion of the other children. In Mrasi and Juta vs'.

239

Majevu, supra, the provisions of section 2 (c) of Government
Notice No. 1664 of 1929 appear to have been overlooked.
In view of the marriage of the late Zekwa in community of
property, the property in his estate devolved as if he had been a
European, and was capable of being devised by will in terms
of section tweriiy-lhree (3) of Act No. 38 of 1927.

In Julia Shata v. Mocholo D. Shata, 1942 ,N.A.C. (C. & O.),
42, the Assistant Native Commissioner had held that as the
marriage between the late Daniel Shata and appellant, was in
terms of section 5 (1) of Proclamation No. 142 of 1910,
out of community of property, it obviously is not one of the
forms of marriage referred to in section 2 (c) of Government
Notice No. 1664 of 1929 and therefore the estate fell to be
administered under sub-section (e) of section 2 of the said
Government Notice.

At pages 43 and 44, the learned President stated ; “ If we
examine Government Notice No. 1664 of 1929, we find that
it deals with the intestate estates of deceased natives . . .
natives married in community of property or by ante-nuptial
contract and detribalised natives generally. The object clearly
was to deal with these estates in a different manner to those of
ordinary tribal natives. The regulations do not include the
estates of those natives whose only marriage was one out of
community of property by virtue merely of sub-section (6) of
section twenty-two of Act No. 38 of 1927 (which re-enacted in
slightly modified from section 5 (1) of Proclamation No. 142
of 1910). In the opinion of this Court this constitutes a casus
omissus, in cases where there has been no prior customary union,
but it is not of any consequence in the present enquiry, where
the deceased was first married in community of property.

The words used in paragraph (c) of Government Notice No.
1664 arc clear and definite and admit of only one meaning,
namely, that if the deceased had at any time contracted a
marriage in community of property or by ante-nuptial contract,
his estate on his decease had to devolve as though he had been
a European ” (The casus omissus mentioned above has since
been remedied by Government Notice No. 939 of 1947.)

This Court feels that there is no room for doubt as to the
intention of the legislature in framing the regulations under
Government Notice No. 1664 of 1929. As the late Daniel
Shata had during his lifetime contracted a marriage in community
of property his estate must devolve as if he had been a
European, and the fact that he contracted a second marriage
which itself does not fall within the terms of paragraph (c) does
not affect the position.

Damane v. Damane, 1944, N.A.C. (C. & O.), 84 is an instance
of a case in which the deceased father and husband of the
parties was married neither in community of property nor by
ante-nuptial contract and thus any property not falling under
sub-sections (1) and (2) of section twenty-three of Act No. 38
of 1927 was in terms of section 2 (e) of Government Notice No.
1664 of 1929, as amended, to be distributed according to Native
Law and Custom.

There is a conflict of evidence as to when some of the property
claimed was acquired, and the Native Commissioner has made no
finding on these points. As it is important to know during the
subsistence of which of his three successive marriages such
property was acquired, he should give findings on this matter.

The decision of the Native Commissioner that the children
of the three wives must be regarded as belonging to one
family, and that the eldest son was entitled to succeed to the
whole estate is in conflict with the following statement which
appears on page 232 in the case of Ngewayi v. Ngewayi, 1950,
N.A.C. (D.S.), 231: —

“A marriage by Christian Rites does not greate a ‘ house ’.
A woman so married is in the eyes of the law her husband’s
only wife. Her status is independant of any of her husband’s

240

‘ house ’ or other wives. Her eldest son succeeds to such property
as was acquired by her husband during the subsistence of the
marriage. In this connection see the decision in the case of
Tonjeni v. Tonjeni, 1947, N.A.C. (C. & O.), 8, in which the
circumstances were somewhat similar and in which the question
of succession was also in dispute.”

The production of the marriage certificates or certified copies
thereof are essential to the just decision of this case and this
Court will exercise the wide discretion conferred by section
fifteen of Act No. 38 of 1927, by setting aside that part of the
judgment awarding the assets in the estate to plaintiff, to enable
either of the parties to tender the necessary evidence regarding
the three marriages of the late Tiyo Samuel Mboniswa. In
terms of rule 53 (13) promulgated under Government Notice No.
2886 of 1951, the presiding officer may himself call a witness
not called by either party if he thinks his evidence is necessary,
in order to elucidate the truth or for the solution of the question.

The judgment of the Court below awarding the assets in the
estate to plaintiff is therefore set aside and the record of
the proceedings is returned for such further evidence as either
of the parties may tender, and for a fresh judgment to be
entered thereafter. Costs of appeal to be costs in the cause
Warner (Acting President) and Strydom (Member): Concurred.

For Appellant: Mr. Zietsman, Kokstad.

For Respondent: Mr. Elliot, Kokstad.

NORTH-EASTERN NATIVE APPEAL COURT.

SHANGASE v. KUMALO.

N.A.C. Case No. 66 of 1952.

Pietermaritzburg: 14th October, 1952. Before Steenkamp,

President, Balk and Richards, members of the Court.

LAW OF PROCEDURE.

Practice and Procedure — Appeal — Late noting — Application for

condonation.

Summary: Appellant was late in noting his appeal and
embodied in his notice of appeal a paragraph reading: —

“ Whereas reasons for judgment were only given to
Appellant on the 12th July^ application for condonation of
appeal is hereby made.”

Held: That the rules, as interpreted, have not been complied
with and as the appeal was not noted timeously, and there
being no proper application for condonation of the late
noting before the Court, the appeal should be struck off
the roll with costs.

Cases referred to:

Dhludhla v. Zungu, 1947, N.A.C. (T. & N.), 60.

Statutes,, etc. referred to:

Native Appeal Court Rules Nos. 2, 4 and 14 and No. 6 of
the “ Old Rules ”.

Appeal from the Court of the Native Commissioner, Camper-
down.

Steenkamp (President):

Judgment for defendant (now respondent) was delivered on
19th June, 1952. On 26th June, 1952, the appellant requested
the Native Commissioner to be supplied with the facts found
proved and reasons for judgment. This request was received

241

on the 30th June, 1952. The Native Commissioner duly com-
plied with the request and a written judgment dated 1st July,
1952, was filed of record, but it was not until 30th July, 1952,
that the appellant filed his notice of appeal.

In the notice of appeal appellant states that whereas reasons
for judgment were only given to appellant on 12th July, applica-
tion for condonation of appeal is hereby made.

According to rule 4 of the Native Appeal Court Rules an
appeal should be noted within fourteen days after the delivery
to the Clerk of Court of the written judgment by the presiding
officer.

In the first instance the appellant should have enquired from
the Clerk of the Court, on the expiration of ten days after
his request, whether a judgment had been filed. It was not the
duty of the Clerk of the Court to notify the appellant that
such a judgment had been filed. In this case the presiding
officer filed the written judgment well within the time limit of
ten days fixed by rule 2.

What this Court has to decide primarily is wether the request
for condonation, embodied in the notice of appeal can be treated
as a proper application for extension of time in which to note
the appeal. The relevant portion of rule 4 reads that the Court
of Appeal may in any case at the hearing of the appeal extend
such period on application and upon just cause being shown.

Rule 14 deals with objections, exceptions and applications
in connection with an appeal. It is provided in that rule that
such an application shall be filed, in triplicate, with the Registrar
(or in his absence with the Clerk of the Native Commissioner’s
Court at the centre where the session of the Native Appeal
Court is to be held) not less than 24 hours prior to the commence-
ment of such session and a copy of such application shall be
served on the other party.

The old rule 6 reads that the Court of Appeal may in any
case extend such period upon just cause being shown. That
rule did not definitely state that an application in writing
should be made, yet in the case of Dhludhla v. Zungu, 1947,
N.A.C. (T. & N.), 60, this Court decided that an application for
condonation of late noting of appeal must be supported by
affidavit. How necessary this is cannot be too strongly emphasized
because the Appeal Court firstly has to decide whether the late
noting is due to the fault of the appellant. This can only be
decided if evidence by means of an affidavit giving reasons for
the late noting is before the Court. If the reasons are such that
the Appeal Court feels there was no excuse for the late noting,
then the question of whether a manifest injustice is apparent
from the evidence adduced in the case will have to be considered.

There can be no doubt that the rules as interpreted have not
been complied with.

The appeal is struck off the roll with costs on the grounds
that it was noted late, and there being no proper application
for condonation.

Balk (Permanent member) :

I agree that this appeal should be struck off the roll with
costs as it was not noted timeously and no proper application
for condonation of the late noting is before this Court.

Richards (Member) :

I agree that the appeal should be struck off the roll with costs.

For Appellant: Mr. D. B. Davies of Messrs. J. Fraser & Co.

For Respondent ; Adv. D. Shearer instructetd by Messrs. Cowley
& Cowley.

242

NORTH-EASTERN NATIVE APPEAL COURT.

MKIZE V. MNGUNI.

N.A.C. Case No. 68 of 1952.

Pietermaritzburg: 14th October, 1952. Before Steenkamp,

President; Balk and Riehards, Members of the Court.

LAW OF PROCEDURE.

Practice and Procedure — Chiefs’ Courts — Jurisdiction — Appeal

to Native Commissioner’s Court — System of Law to be applied.

Summary: An appeal against the judgment of a chief was
heard by a Native Commissioner, who applied Common
Law in deciding the case.

Held: That as Chiefs’ Courts’ jurisdiction is limited to civil
claims arising out of Native law and custom, the Native
Commissioner should have used his discretion in favour of
Native law and custom, as it was a case tried under that
system of law, which formed the subject of the appeal to
his Court.

Held further: That the erroneous application of a particular
system of law does not, in the instant case, affect the merits
of the appeal as there is no prejudice, and therefore the
appeal should be dismissed with costs.

Statutes, etc. referred to:

Section twelve, (1) (a) of Act No. 38 of 1927, as amended.

Appeal from the Court of the Native Commissioner, Richmond.

Steenkamp (President):

In dismissing this appeal with costs, and which should never
have been noted on the grounds set out in the notice of appeal,
I wish to point out that the damages ineurred by the plaintiff
and as awarded by the Chief are fully justified from the
evidence adduced before the Native Commissioner.

I wish, however, to draw the Native Commissioner’s attention
to the fact that he heard this case as an appeal from a Chief’s
Court. The Chief’s jurisdiction is limited to civil claims arising
out of Native law and custom, vide section twelve (1) (a) of
the Native Administration Act, 38 of 1927, as amended by
section five. Act No. 21 of 1943. Trespass and damage to crops
are known to Native law and custom, vide section one hundred
and thirty-four of the Code, and the Native Commissioner
therefore erred in hearing the appeal under common law. He
should have used his discretion in favour of Native law and
eustom seeing that it was a case tried under that system of law,
which formed the subject of the appeal to his Court.

If the Native Commissioner wanted to apply common law he
should, to be consistent, have set aside the proceedings in the
Chief’s Court, but this erroneous applieation of a particular
system of law does not however affect the merits of the appeal
as there is no prejudice and therefore the appeal should be
dismissed with costs.

Balk (Permanent member): I concur.

Richards (Member): I concur.

For Appellant: Mr. I. N. R. Swain of Messrs. C. C. C. Raul-
stone & Co.

For Respondent: Mr. L. Weinberg i/b Messrs. Wynne, Cole
& Tod.

243

NORTH-EASTERN NATIVE APPEAL COURT.

IVfSOMI V. MSOMI.

N.A.C. Case No. 58/52.

Pietermaritzburg; 16th October 1952. Before Steenkamp,

President; Balk and Richards, Members of the Court.

ZULU CUSTOM

Maintenance of Kraal — Contributions by inmates.

Lobolo — Provision of cattle by kraal head for lobolo of younger

brother.

Summary: Plaintiff claimed sixteen head of cattle (being three
head with their progeny of thirteen head of cattle) alleging
that the three head of cattle had been purchased by defen-
dant on his (plaintiff’s) behalf from an amount of £7 sent
to defendant by plaintiff while he (pjaintiff) was an inmate
of defendant’s kraal.

The £7 was the only amount sent by plaintiff to defendatit
during all the years in which plaintiff was an inmate of his
kraal. Plaintiff requested defendant to furnish him with
lobolo cattle, which was refused.

Held: That as plaintiff had contributed practically nothing
towards the upkeep of the kraal, he was not entitled
to any contribution towards his lobolo by defendant.

Held further: That the Native Commissioner had not consi-
dered the probabilities from a legal point of view, in that
he had not dealt with the duties and obligations an inmate
owes to the kraal head, and if he had so considered that
aspect, he might have, on the evidence, come to a different
conclusion.

Cases referred to:

Rex V. Dlumayo and another, 1948 (2), S.A. 677, (A.D.).

Statutes: Section thirty-five of the Natal Code of Native Law
(Proclamation No. 168/32).

Appeal from the Court of the Native Commissioner, Ixopo.

Steenkamp (President), delivering the majority judgment of
the Court: —

In the Chief’s Court the plaintiff (now respondent) sued the
defendant (now appellant) for three head of cattle and their
progeny of 13 head of cattle which he alleges defendant pur-
chased on his behalf out of an amount of £7 he had handed
over to defendant.

Defendant’s plea was a denial of plaintiff’s allegation that the
cattle were purchased on his behalf.

The Chief gave judgment for plaintiff for 14 head of cattle and
costs. On appeal to the Native Commissioner the judgment was
altered to one for plaintiff for 12 head of cattle and costs.

Defendant has now appealed to this Court on the following
grounds: —

1. Plaintiff failed to discharge the onus of proof that cattle

bought by defendant in the absence of plaintiff were in
fact purchased for plaintiff and with his money — but on
the contrary all the presumptions and probabilities of the
case, as reflected by the evidence are in favour of owner-
ship vesting in defendant.

2. The conflict of evidence between plaintiff and his witnesses

negative their story.

3. It would be unlikely, and contrary to Native law and

custom for defendant, plaintiff’s kraal head, to agree to

244

use what was the only money alleged ever to have been
brought home by plaintiff, and at a time when plaintiff was
a young boy — to buy cattle for him. Such money, if
brought home, vested in defendant.

At the outset I wish to point out that the evidence is not at
all clear whether when he brought the £7 home plaintiff was still
a young boy. On the contrary the evidence seems to indicate that
he was already a taxpayer. He might still have been a minor but
in any case for the purposes of this case it seems immaterial what
his age was, as according to section thirty-five (1) of the Code a
kraal head is entitled to a reasonable share of the earnings of
other members of his family and of any other kraal inmates.

Plaintiff and defendant are brothers — defendant being the
eldest and general heir to their late father. At the time of their
father’s death plaintiff was only a small herd boy. Defendant
was much older and became the head of the kraal on his
father’s death. Plaintiff, therefore, fell under the guardianship
of the defendant and was subject to all the obligations, restric-
tions and obedience a minor or inmate of a kraal owes to a
kraal head.

Plaintiff first went to work at Port Shepstone and after having
worked there for some time — it is not at all clear for how long
he worked — he returned home, i.e. to the kraal of his late father
where his mother and defendant, who was then already a
married man, were residing. According, to plaintiff’s evidence,
which is denied by defendant, he gave defendant £7 of his
earnings and asked him to purchase cattle on his (plaintiff’s)
behalf. Defendant handed the money over to their mother for
safekeeping. It is not understood why defendant should have
done so as he had his own wife who could have looked after
the money, but this is only by the way. Plaintiff remained at
home for a short while and then went to work at Johannesburg,
where he remained for a period ranging from 10 to 16 years.
During the period he was away his people, i.e. his mother and
his brother, the defendant, never heard from him. In fact his
mother who gave evidence on his behalf states that he was away
for so long that she had given him up as lost. She was not even
in possission of his address while he was away.

After plaintiff had had enough of Johannesburg — having stayed
there for a long period — he returned to the kraal. This goes to
prove that he still considered himself an inmate of that kraal.
His return could be likened to that of the prodigal son, and
while his mother must have been very pleased to see him
again after so many years, his brother, the defendant, must have
felt that plaintiff had neglected the obligations he owed to the
kraal. Within a week they quarrelled. Plaintiff naturally blames
his brother, the defendant, for the quarrel, whereas defendant,
blames him. As a result of the quarrel plaintiff left the kraal
and then claimed that out of the £7 he had given to defendant
certain three head of cattle were purchased on his behalf and
he wants those cattle and their progeny handed over to him.

According to the evidence given by defendant the cause of the
quarrel was due to the fact that plaintiff on his return from
Johannesburg asked defendant to point out cattle with which to
pay lobolo. Defendant declined to do so whereupon plaintiff
became annoyed and a quarrel ensued. This explanation rings
true, especially as plaintiff’s version of the quarrel seems rather
frivolous when he states that this was due to the fact that he had
asked defendant why one of the animals, i.e. one of those in
dispute, had not been fed. When it is considered that defendant
had looked after the cattle for so many years, it seems rather
presumptuous on the part of plaintiff to question defendant
about the feeding of one beast and I do not think he would
have had the impertinence to do so and therefore the defen-
dant’s version of the quarrel seems the more probable and it is
not surprising that he declined to give plaintiff any lobolo

245

cattle. 1 hold he was justified in taking up the attitude that his
upkeep of the kraal, was not entitled to any contribution towards
his lobolo.

In a case of this nature where plaintiff after an absence of
many years claims that certain cattle at the kraal were purchased
on his behalf, clear proof is required that this is so. I find
myself unable to agree that plaintiff has proved ownership in
the cattle. There are certain discrepancies in the evidence
given by him and that given by this two witnesses but, before
dealing with these, it is desirable to point out that plaintiff,
if his evidence is to be believed, was at Port Shepstone when
the cattle were bought for him by the defendant. He returned
from Port Shepstone to the family kraal before proceeding to
work at Johannesburg. Yet he did not take steps to have those
cattle branded and earmarked.

Plaintiff states all these cattle were purchased while he was
still at Port Shepstone and saw them at the kraal where the three
cattle were pointed out before there was any inerease, yet his
mother who gave evidence on his behalf states that only one
beast had been purchased before plaintiff left for Johannesburg
and that plaintiff only saw this one animal.

It is difficult for me to understand why plaintiff if he had three
head of cattle should have taken no steps to communicate with
his mother and brother, the defendant, for so long a period
and enquire after his eattle. Natives attach considerable value
to cattle, especially as in this case two of the cattle were heifers,
and his lack of interest militates strongly against hi^ allegations
that he owned any cattle. The probabilities here also favour
the defendant.

In his case before the Native Commissioner the plaintiff’s
mother and his sister-in-law, wife of a deceased brother, gave
evidence on his behalf. The Native Commissioner accepted their
evidence that plaintiff had handed over the money to defendant
for the specific purpose of cattle being purchased on his behalf
Defendant denied that he ever received £7 or any amount from
the plaintiff. His evidence stands alone.

If plaintiff only contributed £7 to the common household
over a period of at least 10 years; then we must ask ourselves the
question whether defendant would have been so generous as to
inform his brother, the plaintiff, on his return to the kraal that
such a large number of cattle, viz. 14 are his property. Plaintiff
wants the Court to believe that on his return home the defendant
pointed the animals out to him. Plaintiff gives a detailed
description of the cattle and the Native Commissioner in his
reasons for judgment emphasizes that he believed plaintiff
where he states that defendant was his informant when he
acquired a profound knowledge of the history and of progeny
accruing to the original animals purchased.

I cannot agree with the Native Commissioner that it must
have been the defendant who gave plaintiff all the information.
His mother and sister-in-law could have done so as they had
been living at the kraal and could quite easily have remembered
the cattle defendant admits he purchased.

When we consider the legal issues as advanced in ground 3
of the Notice of Appeal, then a different phase is apparent in
the case. The Native Commissioner has not considered the
probabilities from a legal point of view, in that he has not dealt
with the duties and obligations an inmate owes to the kraal head.
If he had considered that aspect he might have, on the evidence,
come to a different conclusion.

In my opinion the appeal should be allowed with costs and
the Native Commissioner’s judgment altered to read:- —

“ Appeal from Chief’s Court is allowed with costs and the
Chief’s judgment altered to one of absolution from the instance
with costs.”

246

Richards (Member): I agree with the learned President.

Balk (Permanent Member — Dissentiente) : —

The pleadings in this case, the judgments of the Courts below
and the grounds of the instant appeal are set out in the majority
judgment of this Court delivered by the learned President, with
which I regret I am unable to agree.

To my mind it is manifest from the reasons for judgment
furnished by the presiding Additional Native Commissioner in the
Court a quo that he gave due consideration both to the demea-
nour of the witnesses and to the probabilities and improbabilities
as were disclosed by the evidence to have been material in
arriving at his findings of fact; and it seems to me that he has
not misdirected himself therein. The presumption therefore is
that his conclusion that the plaintiff had proved his case is
correct and as the appellant has not, in my view, shown that
conclusion to be wrong, there appears to be no justification for
disturbing it, see Rex v. DIumayo and another, 1948 (2), S.A., 677,
(A.D.).

It is true that there are discrepancies in the evidence for
plaintiff as regards the time when the initial three head of
cattle were purchased by the defendant for the plaintiff, but
to my mind those discrepancies assume minor importance in the
light of the lengthy period that elapsed between the time of
that purchase and the giving of the evidence in question — some
twelve years.

It is also true that it emerges from the evidence of the plain-
tiff’s witnesses that the £7 which the plaintiff handed to the
defendant for the purpose of purchasing cattle for him (plaintiff)
and with £5. 10s. of which the defendant purchased the
initial three head of cattle for the plaintiff, was all that the
latter gave to his elder brother, the defendant, during the lengthy
period that the plaintiff was an inmate of the defendant’s kraal;
and whilst the defendant was, in terms of section thirty-five of the
Natal Code of Native Law published under Proclamation No. 168
of 1932, entitled to a reasonable share of the plaintiff’s earnings
for kraal maintenance during that period, I do not see how these
factors can affect the preponderance of probability that the £7
was in fact given by the plaintiff to the defendant for the
purchase of cattle for the plaintiff and so used by him, seeing
that — •

(1) according to the plaintiff’s uncontroverted evidence he was

a taxpayer and engaged to be married at that time and
he therefore then required cattle for lobolo purpose;

(2) it is no part of the defendant’s case that the £7 was given

to him by the plaintiff for kraal maintenance; on the con-
trary the defendant in his evidence denied the receipt of
the £7 from the plaintiff and it is implicit in the defendant’s
testimony not only that he took no steps to obtain from
the plaintiff any contribution towards kraal maintenance,
but also that the question of any such contribution forms
no part of his defence.

In the result I am of opinion that the appeal should be
dismissed with costs but that in order to correct a patent error
in the Additional Native Commissioner’s judgment, it should be
amended by the substitution of the word “ two ” for the word
“ four ”.

For Appellant: Adv. J. H. Niehaus (i/b. H. L. Bulcock).

For Respondent: Mr. G. S. Clulow.

247

NORTH-EASTERN NATIVE APPEAL COURT.
MBANJWA V. MBANJWA.

N.A.C. Case No. 69/52.

PiETEMARiTZBURG : 16th October 1952. Before Steenkamp,

President; Balk and Richards, Members of the Court.

ZULU NATIVE LAW AND CUSTOM.

Native Customary Union — Grounds for Dissolution — Necessity
to cite father or protector of wife as party to case before
order for repayment of lobolo competent — Sections eighty and
eighty-three of Natal Code of Native Law of 1932.

Practice and Procedure — Appeals — Until contrary shown, findings
of Judicial officer are presumed to be correct. Recission of
order which is void ab origine could have been applied for in
Native Commissioner's Court.

Summary: Appellant, the wife of respondent sued for disso-
lution of the Native customary union on grounds founded
under sections seventy-six (1) (/) and seventy-six (2) (a) of the
Natal Code of Native Law. The Native Commissioner
granted the dissolution and ordered that there shall be no
return of lobolo.

Held: That on the facts found proved the woman was entitled
to a divorce solely on the ground of the husband’s misdeeds.
Held further: That no order as to return of lobolo was com-
petent as the woman’s father or protector was not cited as
a party to the action.

Held further: That as the order concerning return of lobolo
was void ah origine, there was no necessity for appellant to
have brought the matter on appeal to have that order set
aside as he could have obtained the relief sought by him
by making application to the Native Commissioner’s Court
for the rescission of the order in question.

Cases referred to: —

Finywase v. Jakobina, 1910, N.H.C., 115.

Dikazana v. Nozinga, 1916. N.H.C., 211.

Zulu V. Nkosi, 1, N.A.C. (N.E.), 227.

Masoka v. Mcunu, 1, N.A.C. (N.E.), 327.

Mbuyazi v. Mthethwa, 1952, N.A.C.. 54, (N.E.).

Rex V. Dlumayo and Another 1948 (2), S.A., 677 (A.D.).
Statutes referred to:

Sections seventy-six (1) (/), seventy-six (2) (a), eighty, eighty-
one and eighty-three of Natal Code of Native Law.

Rule 73 {b) of Native Commissioners’ Courts Rules. Section
fifteen. Act No. 38 of 1927.

Appeal from the Court of the Native Commissioner, Bulwer.
Steenkamp (President) :

In the Native Commissioner’s Court the plaintiff (now respon-
dent), the woman, duly assisted by her protector sued the
defendant, her husband, for the dissolution of the customary
union existing between herself and the defendant.

The grounds on which she sues are: —

1. That conditions are such as to render the continuous

living together of the parties insupportable or dangerous.

2. Gross cruelty or ill-treatment on the part of the husband.

Ground 1 is that laid down by section seventy-six (1) (/) of the
Code and ground 2 by section seventy-six (2) {a).

It seems to me that the circumstances under which a divorce
may be sought under ground 1, must be of such a nature that
there is fault on the part of both the husband and the wife.
As mentioned by Stafford on page 130 in his book on the

248

principles of Native Law and the Natal code (2nd Edition) the
provisions of this section, viz. section seventy-six (1) (/) will enable
the Court to grand the> divorce even when the blame cannot be
laid at the door of either party and a fair order can be made
regarding the lobolo to be returned to the husband. In the case
of Dikazana v. Nozinga, 1916, N.H.C., 211, Mr. Justice Chadwick
is reported to have stated: —

“ I think when it comes to the knowledge of the Court
that a man and woman cannot live together in harmony,
that it is much better that they should be separated.”

Ground 2 should, I think, be dealt with independently of
ground 1, and where divorce is sought under ground 2, and it
is found that gross cruelty or ill-treatment on the part of the
husband has not been established, then and then only should it
be considered whether the Court should not grant a divorce
on the ground that continuous living together is insupportable
or dangerous. Under this ground, if a divorce is granted,
some of the cattle paid as lobolo are returnable (see the case
of Finywase v. Jakobina, 1910, N.H.C., 115), whereas if the
divorce is granted by reason of the wrongful acts, misdeeds or
omissions of the husband, no lobolo is returnable vide section
eighty-ones of the Code.

The Native Commissioner in granting a divorce made the
following order: —

(a) That the customary union subsisting between the defendant

and the plaintiff be dissolved;

(b) that the woman Gebelezi Mbanjwa become the ward of
her father Siqongqotho Pungula and that she henceforth
reside at the kraal of her guardian Siqongqotho;

to Gebelezi. and that the child shall remain in such
custody until the 31st December. 1959. After that date
the child shall be returned to the defendant. On such
return, the plaintiff or any other person who has main-
tained the child shall be entitled to receive compensation
from the defendant in respect of such maintenance;

(d) that there shall be no return of lobolo since the union

has been dissolved on account of the wrongful acts and
misdeeds of the defendant;

(e) that the plaintiff be awarded the costs of the action.

An appeal has been noted against the whole judgment on the
following grounds: —

1. The judgment is against the weight of evidence and con-

trary to law.

2. In any event the Native Commissioner erred in ordering

that no lobolo cattle should be returned to the defendant.

It is not mentioned in ground 1 of the notice of the appeal
in what respect the judgment is contrary to law and therefore
this part of ground 1 will be disregarded.

The Native Commissioner has found proved the following
facts inter alia: —

1. That the defendant has an ungovernable temper and often

assaulted his wife, the plaintiff.

2. That the defendant on a certain occassion became annoyed

with his wife for coming home late from visiting. The
defendant remonstrated with her and threatened to stab
her.

3. That the defendant on a later occasion threatened to stab

the plaintiff and advanced upon her with an assegai in
his uplifted hand. Defendant’s father intervened on
hearing the screams of plaintiff. Defendant then turned
on his father and fatally stabbed him with the assegai.
Defendant was under the influence of liquor at the time
of the occurrence.

249

That the defendant was sentenced by the Native High
Court to four years’ imprisonment with hard labour for
this crime.

These facts are abundantly borne out by the evidence and it
is not necessary to elaborate thereon. These wrongful ac^ and
misdeeds on the part of the husband are in my opinion sufficient
to entitle the wife, i.e. the plaintiff, to be granted a divorce.

Unfortunately the Native Commissioner in his reasons for
judgment mentions that the Court was convinced that conditions
were such, as to render the continued living together of the
parties to be insupportable and dangerous. In dealing with
rulings of law the Native Commissioner also states that the
union had to be dissolved solely on account of defendant s
wrongful acts which had made living together absolutely insup-
portable.

These reasonings by the Native Commissioner would appear
to be inconsistent, and as pointed out above, a divorce is either
granted because living together is insupportable or dangerous
from which will follow a return of some of the lobolo paid, or
the divorce is granted solely by reason of the husband’s wrong-
ful acts, misdeeds or omissions, in which case no lobolo is
returnable.

From the above it follows that if a divorce is granted by
virtue of section 76 (2) («), the question of insupportability or
dangerous living together do not form part of the issue which
is confined entirely to the sole misdeeds of the husband.

From the facts found proved there can be no doubt that the
woman is entitled to a divorce solely on the ground of the
husband’s misdeeds which have been established in the evidence.

Regarding ground 2 of the notice of appeal, the Native
Commissioner seems to have laboured under the misapprehen-
sion which has been so common amongst judicial officers that
it is imperative in every case of divorce that an order must be
made regarding the return of lobolo cattle. This is far from
correct, and I must concede that the misunderstanding has arisen
from the wording of section 83 (c) of the Code. There have
been several decided cases by this Court in connection with
the interpretation of this provision in the Code. The latest is
the case of Masoka v. Meunu, 1, N.A.C. (N.E.), 327. See also
the case of Zulu v. Nkosi, 1, N.A.C. (N.E.), 227, and the cases
referred to therein.

The substitution of section eighty by Proclamation 176 dated
1st August, 1952 now makes it clear beyond any doubt that, not-
withstanding anything contained in section eighty-three no order
for the return or forfeiture of lobolo shall be granted in any
action for the dissolution of a customary union unless the father
or protector of the wife is cited as a party to the action.

In the instant appeal the father of the woman was not cited
as a party and as the order by the Native Commissioner is
tantamount to a forfeiture of the lobolo paid by the husband,
we are of opinion that that part of the judgment should be
deleted, not on the grounds that the Code had been amended,
which amendment after all only occurred after the hearing of
the case, but by virtue of the previously decided cases referred
to supra.

Before concluding I wish to refer to the summons, to point out
that where defendant’s name is first mentioned it should have

been followed by the words “ duly assisted by

The defect was cured later in the summons but a summons must
be drawn up in the correct manner.

The grounds for the divorce leave much to be desired and
I think it would have been more appropriate that (b) should
have been (a) and in the alternative (a) should have been men-
tioned.

250

On the facts the appeal cannot succeed and in my view it
should be dismissed with costs, but the judgment of the Native
Commissioner should be altered by the deletion of paragraph {d)

Richards (Member): I concur.

Balk (Permanent Member): —

The pleadings in this case, the judgment of the Court a quo
and the grounds of appeal are set out in the learned President’s
judgment.

To my mind it is manifest from the reasons for judgment
furnished by the presiding Acting Native Commissioner in the
Court a quo that he gave due consideration both to the demeanour
of the witnesses and to the probabilities and improbabilities as
were disclosed by the evidence to have been material in arriving
at his findings of fact; and it seems to me that he has not
misdirected himself therein. That being so and as the appellant
has not, in my view, shown that those findings are wrong, the
presumption that they are correct stands, see Rex v. Dlumayo
and Another, 1948 (2), S.A. 677 (A.D.); and since those findings
obviously justify the decree of divorce, the first ground of
appeal fails.

Coming to the next and final ground of appeal, it is clear
that it was not competent for the Court a quo to have ordered
that there shall be no return of lobolo as the plaintiff’s father
was not a party to the instant action but appeared therein solely
for the purpose of assisting his daughter, the plaintiff. That order
was therefore void ah origine and there was thus no necessity
for the defendant to have brought the matter on appeal to have
that order set aside since he could have obtained the relief sought
by him by making application to the Native Commissioner’s
Court for the rescission of the order in question under rule
73 {b) of the rules for those Courts published under Government
Notice No. 2886 of 1951 and it is still open to him to do so,
see Mbuyazi v. Mthethwa, 1952, N.A.C. 54 (N.E.).

I therefore agree that the appeal should be dismissed with
costs and am also of the opinion that in order to save further
costs in this matter, this Court should, under the wide powers
vested in it by section fifteen of the Native Administration Act,
1927, amend the judgment of the Court a quo, by deleting
therefrom paragraph (d), which reads as follows: —

“ (d) that there shall be no return of lobolo since the union
has been dissolved on account of the wrongful acts
and misdeeds of the defendant.”

For Appellant: Mr. J. R. N. Swain of Messrs. C. C. C. Raul-
stone & Co.

For Respondent: Adv. J. H. Niehaus instructed by Mr. H. L.
Bulcock.

NORTH-EASTERN NATIVE APPEAL COURT.

ZULU V. MTOLO N.O.

N.A.C. Case No. 74/52.

Pietermaritzburg: 16th October, 1952. Before Steenkamp,

President; Balk and Richards, Members of the Court.

COMMON LAW.

Damages — Seduction.

Practice and Procedure— System of Law applied — Action brought
by father and natural guardian of girl in his capacity as such.

251

Summary: Plaintiff, in his capacity as father and natural
guardLn of his daughter, sued defendant for darnages for
his daughter’s seduction by defendant. At the trial applica-
tion was made and granted for the deletion of the claims tor
the ngqutu and imvimba beasts from the summons.

The Additional Native Commissioner, indicating that
he was deciding the case under Native Law and Custom,
gave judgment for plaintiff for a ngqutu and an imvimba
beast (or their value) and costs.

Held: That as the summons discloses that Petros Mtolo sued
in his capacity as the father and natural guardian of his
daughter (a minor) for damages for her seduction by defen-
dant, It postulates that the action was brought by her and
not by her father.

Held further: That shorn of the two items, the ngqutu beast
and imvimba beast, the case was definitely one to be tried
under Common Law.

Cases referred to:

Mokhesi N.O. v. Demas, 1951 (2), S.A. 502T., P.D.

Mkize V. Makatini & Ano., 1 N.A.C. (N.E.), 207.

Mvemve v. Mkatshwa, 1 N.A.C., N.E. 284.

Appeal from the Court of the Native Commissioner, Pieter-
maritzburg.

Steenkamp (President): —

The plaintiff cites his capacity to sue as being Petros Mtolo
in his capacity as father and natural guardian of his daughter
Beatrice Mtolo (a minor).

He sues the defendant (now appellant) for £123. 17s. lOd.
afterwards reduced to £112. 17s. lOd. being as and for damages
sustained (it is not stated by whom the damages are sustained)
as a result of defendant having seduced Beatrice Mtolo.

Paragraph 1 of the claim reads:

“ Plaintiff is Petros Mtolo in his capacity as father and
natural guardian of his daughter Beatrice Mtolo . . . ”.

The alleged damages sustained are made up as follows: —

To Ngqutu beast

To Imvimba Beast

To Doctor’s expenses

To Ambulance expenses

To Bus fare Pietermaritzburg to Durban (for

two)

To Bus fare Mayville to Durban (for two) 24

days

To Subsistence for two

To General damages for deflowerment and
seduction

£ s. d.
6 0 0
5 0 0
8 0 0
0 16 0

0 17 10

1 4 0

2 0 0

100 0 0

£123 17 10

On the day the case was set down for hearing the claim was,
on application by plaintiff’s attorney, amended by the deletion
of ngqutu beast £6, imvimba beast £5, and the total was amended
to read £112. 17s. lOd. instead of £123. 17s. lOd.

After evidence of seduction had been led the plaintiff, Petros,
gave evidence. It is necessary, in view of the remarks I intend
making, to set out his evidence as given by him under oath :

“ I am the father of the girl Beatrice. She is a minor.
I am her legal guardian. As a result of her being deflowered
I have suffered damages. I have suffered damages to the
extent of £23. I am including the expenses I have incurred
.... When my daughter gets married I will claim lobolo.
I will claim 9 head of cattle. In effect damages I have
suffered is loss of one lobolo beast and ngqutu beast.”

13347-2

232

After this evidence the attorney who appeared on behalf
of defendant applied for an absolution judgment in that there
is no evidence before Court to found an action at Common
Law. The Additional Native Commissioner postponed the

case and made a note on the record which reads “Provisionally
to be decided under Common Law

When the case was resumed a fortnight later the Additional
Native Commissioner refused the application for an absolution
judgment and then added a note which reads “Court indicates
that at this stage it will provisionally decide action under Native
Law

The Court recalled the girl, Beatrice, and after she had
given additional evidence, the defendant closed his case without
adducing any evidence.

The Additional Native Commissioner then made a note “ Case
decided under Native Law ” and entered judgment for plain-
tiff for ngqutu beast and imvimba beast or their value £11 with
costs.

An appeal has now been noted to this Court against the whole
of the judgment on the following grounds; —

(1) (a) That in view of the fact that plaintiff brought the

action in his capacity as father and natural guardian
of his minor daughter and not in the personal capa-
city, he was not entitled to judgment in his favour,
under Native Law.

{b) Alternatively by reason of the plaintiff’s specifiic
abandonment of his claim under Native Law, the
learned Native Commissioner erred in entering judg-
ment under Native Law.

(2) That in view of plaintiff’s failure to prove his right to

claim damages, the learned Native Commissioner erred
in dismissing defendant’s application for absolution at the
instance at the conclusion of plaintiff’s case.

At the outset it is desired to state that those grounds are well
taken. Here we have a case in which the plaintiff, according
to his summons, obviously sued for damage on behalf of his
daughter, Beatrice, who is a minor. The reason his name
was used as plaintiff is not because he was suing in his own name
and for damages sustained by him, but because Beatrice is a
minor. She could have sued in her own name duly assisted by her
father or her father could sue on her behalf.

In the case of Mokhesi, N.O. v. Demas, 1951 (2), S.A. 502
(T.P.D.) the summons set out a claim by “ S. J. Mokhesi N.O.
in his capacity as the father and natural guardian of his minor
daughter Lena Mokhesi ’’.

That citation is similar to the one in the instant appeal, with
this exception, that the word “ minor ’’ is omitted.

In that case the Supreme Court of the Transvaal Provincial
Division held that the summons was not a summons by the
father claiming damages personally, but a summons in which
the minor was the person alleged to be aggrieved and desirous
of claiming compensation.

There is, however, this distinction in so far as Natives are
concerned, that a father of a Native girl, whether she is a
minor or a major, may claim damages in his own name accord-
ing to Native Law and Custom, whereas amongst Europeans
or non-Europeans other than Natives such a right does not
exist.

There can be no doubt that in the present case the claim was
on behalf of the girl Beatrice. It could not have been otherwise
in view of the fact that an application was made and granted for
the omission of the items imvimba and ngqutu beasts which

253

are the recognised form of damage suffered under Native Law
and Custom and such damages accrue to the father or guardian
of the girl and not to the girl personally. Shorn of these two
items the case is definitely one under Common Law and the
Additional Native Commissioner flagrantly erred in applying
a system of law other than Common Law in finding for the
plaintiff. Before the Additional Native Commissioner could
even consider entertaining the idea of applying Native Law
and Custom in finding for the plaintiff the citation of the
plaintiff should have been altered. In other words there is no
room in this case to apply any system other than the Common
Law if judgment is to be given in the plaintiff’s favour.

This is not all. The Additional Native Commissioner commit-
ted a grave error when he on his own motion included in his
judgment items deliberately removed from the claim on applica-
tion by plaintiff’s attorney who, when he made the application,
must have realised that in cases in which the girl claims damages
there is no room to include therein items only known in Native
Law and Custom. This goes to .strengthen my views that only
Common Law can be applied in the present case.

I am constrained to remark that it would be extremely
advisable and desirable for attorneys before issuing a summons
to ascertain with centainty whether the father of the girl or
the girl herself is claiming damages. If attorneys will do that
they will not, when the evidence is being adduced, be faced with
evidence such as was given by the father as already set out.
It serves no good purpose to issue a summons with two strings
to the bow.

It is not the first time such confusion has arisen. In the case
of Mkize v. Makatini and another, 1 N.A.C. (N.E.), 207, this
Court remarked as follows: —

“ This Court must insist on summonses being drawn
up in a more intelligent manner and it should be made clear

in the summons whether the father is suing under the

Common Law on behalf of his daughter, or is suing under
Native Law and Custom on his own behalf.”

As already remarked, it is obvious in the present case that the
action was brought under common law but then the attorney
for plaintiff argued and obtained a judgment in his favour under
Native Law and Custom. Surely the least he could have done was
to have abandoned this judgment or he should never have
the action was brought under Common Law but then the attorney
opposed the application for an absolution judgment at the end

of plaintiff’s case in view of the evidence given by the father.

In the case of Mvemve v. Mkatshwa, 1 N.A.C. (N.E.), 284,
the summons was drawn up similar to the one in the present
appeal but in that case the Court a quo decided the issue under
Common Law and this Court on appeal confirmed the decision.

I therefore come to the conclusion that the summons was
issued under Common Law and as that system had to be applied
it was not competent to give a judgment under Native Law and
Custom, and the attorney for defendant was justified in applying
for an absolution judgment in view of the evidence given by the
father of the girl.

In my view the appeal should be allowed with costs and the
Additional Native Commissioner’s judgment altered to one of
absolution from the instance with costs.

Balk (Permanent Member): —

As pointed out by the learned President in his judgment, the
the summons in the instant case discloses that Petros Mtolo
sued in his capacity as the father and natural guardian of his
daughter (a minor) for damages for her seduction by the defen-
dant (present appellant) which postulates that the action was
brought by her and not by her father, see Mokhesi N.O. v.
Demas, 1951 (2), S.A. 502 (T.P.D.).

254

It is manifest from the reasons for judgment furnished by
the presiding Acting Additional Native Commissioner concerned
that he misconceived the position and laboured under the
erroneous impression that the action was brought by the father in
his personal capacity; hence he gave judgment for an ngqutu beast
and an imvimba beast which is only competent in Native Law,
under which system, however, the daughter has no locus standi.
Moreover the evidence indicates that the father and not the
daughter is making the claim. It follows that the judgment
of the Court a quo is wrong and that the defendant is entitled
to have it set aside.

I therefore agree that the appeal should be allowed with
costs and that the judgment of the Court a quo should be
altered to a decree of absolution from the instance with costs.

Richards (Member): I concur.

For Appellant: Mr. L. Weinberg of Messrs. C. Nathan & Co.

For Respondent: Mr. L. Simon of Messrs. L. Simon & Co.

NORTH-EASTERN NATIVE APPEAL COURT.

DHLADHLA v. NKOMO.

N.A.C. CASE No. 80/52.

Pietermaritzburg: 16th October, 1952. Before Steenkamp,

President; Balk and Richards, Members of the Court.

LAW OF PROCEDURE.

Practice and Procedure — Appeal against Chief’s judgment —
Power of Native Commissioner’s Court to confirm, alter or set
aside the judgment of a Chiefs Court on appeal — Application
for variation of Native Commissioner’s judgment made to
Native Commissioner’s Court — Competency of Native Commis-
sioner’s Court to have amplified its judgment, as it did, not
considered — Judgment of Native Commissioner’s Court altered
by Native Appeal Court.

Summary: Plaintiff obtained judgment against defendant in a
Chief’s Court for three head of cattle. Three head of cattle
were attached in pursuance of that judgment. Defendant
appealed to the Native Commissioner’s Court. The Native
Commissioner upheld the appeal. At the instance of plain-
tiff’s attorneys that judgment was subsequently amplified by
the Native Commissioner.

Held: That a Native Commissioner’s Court has power to con-
firm, alter or set aside the judgment of a Chief’s Court on
appeal.

Held further: That as the point was not raised on appeal, it was
not necessary to decide whether or not it was competent for
the Native Commissioner’s Court to have amplified its judg-
ment as it did.

Held further: That in order to obviate any further miscon-
ception of the effect of the Native Commissioner’s judgment,
it should, under the wide powers conferred upon the Native
Appeal Court, be altered.

Cases referred to:

Shobede v. Shobede, 1 N.A.C. (N.E.), 340.

Statutes, etc., referred to:

Sections twelve (5) and fifteen of Act No. 38 of 1927.

Appeal from the Court of the Native Commissioner, Camper-
down.

255

Balk (Permanent Member): —

The plaintiff (present appellant) obtained judgment for certain
three head of cattle against the defendant (now respondent) in a
Chief’s Court.

The defendant appealed against that judgment to the Native
Commissioner’s Court having jurisdiction (hereinafter referred to
as “ the Native Commissioner’s Court ”) which, at the close of
the plaintiff’s case, entered the following judgment: —

“ Appeal upheld with costs and cattle declared not
executable.”

Subsequently the Native Commissioner’s Court at the instance
of the plaintiff’s attorneys amplified its judgment to read as
follows: —

“ Appeal upheld with costs; Chief’s judgment set aside and
cattle (one beast and its increase of two) declared not
executable. The said cattle are therefore returnable to the
appellant (defendant) Zenzale Nkomo.”

Thereafter the plaintiff made application in the Native Commis-
sioner’s Court, through his attorneys, “ for a variation of the
judgment delivered by the learned Native Commissioner on the
10th July, 1951, on the ground of the invalidity of the said judg-
ment; said judgment be altered to such a form that it becomes
a proper judgment in compliance with the Rules as in force
and applicable to this case.”

That application was refused by the Native Commissioner’s
Court, and this refusal has given rise to the instant appeal, the
notice of which reads as follows: —

1. “Please take notice that the plaintiff (appellant) hereby notes

an appeal against the whole of the judgment of the Native
Commissioner of this Worshipful Court, delivered on the
14th August, 1952, in which he refused the application of
plaintiff (appellant) for the variation of the judgment,
delivered by the Native Commissioner aforesaid on the 10th
July, 1951, on the ground that the said judgment of 10th
July, 1951, was invalid.

2. The grounds of appeal are: — •

(a) The learned Native Commissioner’s judgment in refus-

ing the application was wrong in law in that plaintiff
(appellant) submits that the judgment of the learned
Native Commissioner of the 10th July, 1951, was in
fact, invalid in that it does not comply with the Rules
of this Worshipful Court as were applicable at the
the time of judgment (10th July, 1951); and/or that

(b) the said judgment of 10th July, 1951, is not a definite
and/or final judgment and is therefore invalid and has
no legal force and effect.

3. Plaintiff (appellant) submits that the learned Native Com-

missioner should have granted the application to vary the
judgment delivered on the 10th July, 1951, and that his
judgment should have been varied to one upholding the
appeal to this Worshipful Court and to the setting aside of
the judgment of the Chief’s Court and to the alteration
of the judgment to one of absolution from the instance
with costs for the following reasons: —

(a) Plaintiff (appellant) only gave evidence in the case;

(b) the learned Native Commissioner apparently did not
consider that the defendant (respondent) had a case to
meet; and

his case.

4. Wherefore plaintiff (appellant) prays that the Honourable

Court of Appeal uphold this appeal and make —

256

(a) an order that the Native Commissioner’s judgment be

altered to one granting the application and varying
the order of Court in the Native Commissioner’s Court
at Camperdown delivered on the 10th July, 1951, to
one upholding the appeal from the Court of the Chief,
and replacing the Chief’s judgment with that of an
absolution from the instance with costs; and order

(b) that defendant (respondent) be ordered to pay the costs
of the application in the Court of the Native Commis-
sioner appealed from and also the costs of this appeal;
and/or

may deem just.”

Sub-section (5) of section twelve of the Native Administration
Act, 1927, as amended, empowers a Native Commissioner’s Court
to confirm, alter or set aside the judgment of a Chief’s Court on
appeal so that the amplified judgment of the Native Commis-
sioner’s Court in the instant case, allowing the appeal with costs
and setting aside the Chief’s judgment, is obviously valid. Here it
may be mentioned that the question of whether or not it was com-
petent for the Native Commissioner’s Court to have amplified its
judgment as it did, does not call for consideration as this point
has not been raised on appeal.

As the instant case was not an interpleader action, and as it
is manifest from the record of the proceedings in the Court a quo
that the cattle in question were attached and delivered to the
plaintiff in pursuance of the Chief’s judgment, it seems to me that
the proper construction to be placed on the words “ cattle declared
not executable ” embodied in the Native Commissioner’s judgment
is that those words are equivalent to an order for the restoration
of the status quo i.e. the judgment of the Chief’s Court having
been set aside, the defendant was entitled to an order for the
return to him of the cattle in question which had been attached
and delivered to the plaintiff in pursuance of the Chief’s judgment,
see Shobede v. Shobede, 1 N.A.C. (N.E.), 340. That this is the
correct view gains support from the fact that the words “ the
said cattle are therefore returnable to the appellant (defendant)
Zenzale Nkomo ” follow the words “ cattle declared not execut-
able ” in the Native Commissioner’s judgment.

It is true that the Native Commissioner states in his reasons for
judgment that he intended to alter the Chief’s judgment to an out-
right judgment for defendant, but to my mind that intention
was not translated into actuality since there appears to be nothing
in the language in which the Native Commissioner’s judgment is
couched indicating that any other judgment was substituted for
the Chief’s judgment which was set aside. The words “ cattle
declared not executable ” cannot for the reasons given above be
construed as a judgment in substitution of the Chief’s judgment,
but only as an order for the restoration of the status quo. In
effect therefore the Native Commissioner’s judgment is equivalent
to one of absolution from the instance. That this is so follows
from the fact that the setting aside of the Chief’s judgment with-
out its substitution by another judgment leaves it open to the
plaintiff to pursue his action as in the case of an absolution
judgment.

Beyond stating that it may perhaps be just as well that the
Native Commissioner did not word his judgment so as to give
effect to his intention of finding for defendant, it is unnecessary
to consider the correctness of that judgment on the merits since
that aspect is not covered by the instant appeal, which is con-
fined to the question of whether or not the Native Commissioner’s
judgment was void.

In the result I am of opinion that the appeal should be dis-
missed with costs but that in order to obviate any further mis-
conception of the effect of the Native Commissioner’s judgment,
it should, under the wide powers conferred upon this Court by
section fifteen of the Native Administration Act, 1927, be altered
to read: —

257

“ The appeal is allowed with costs and the Chief’s judgment
is altered to one of absolution from the instance with costs.
The plaintiff is ordered to restore the status quo by returning
the three head of cattle concerned to the defendant ”,
Steenkamp (President); I concur.

Richards (Member): I concur.

For Appellant: Mr. C. A. H. Manning of Messrs. McGibbon &
Brokensha.

Respondent in default.

CENTRAL NATIVE APPEAL COURT.

MATONSELA v. MATONSELA.

N.A.C. CASE No. 31/52.

Johannesburg: 17th October, 1952. Before Marsberg, President,

Rein and Venter, Members of the Court.

PRACTICE AND PROCEDURE.

Practice and Procedure — Exceptions: Appearance of Articled

Clerks in Native Commissioners’ Courts.

In an action for the return of a certain motor-car, defendant
lodged a plea which was adjudged to be “ excipiable ” by the
Native Commissioner who ordered it to be struck out and ordered
defendant to file a fresh plea within seven days. Defendant
appealed against this ruling and also applied for review of the
proceedings on the grounds that the Native Commissioner’s action
constituted a grave irregularity or illegality in that the rules of the
Native Commissioners’ Courts do not provide for the taking of
exceptions.

Held: That the ruling was not appealable.

Held further: That as the application for review did not allege
any improper conduct on the part of the Native Commis-
sioner, the proceedings were not reviewable.

Held further: That in interpreting and applying the new rules
of the Native Commissioners’ Courts, the provisions of section
fifteen of Act No. 38 of 1927 should be kept in mind.

An articled clerk is not entitled to appear in a Native
Commissioner’s Court, despite the provisions of section
twenty-one (3) of Act No. 23 of 1934.

Statutes, etc. referred to: —

Sections 22, 47 and 81 of Government Notice No. 2886 of
1951.

Section fifteen of Act No. 38 of 1927.

Section twenty-one (3) of Act No. 23 of 1934.

Appeal from the Court of the Native Commissioner, Springs.

Marsberg (President), delivering the judgment of the Court; —

In the Native Commissioner’s Court at Springs, plaintiff,
Solomon Matonsela, sued defendant, Ishmael Matonsela, for the
return of a certain motor-car or its value £116.

Defendant lodged a plea which was adjudged by the Native
Commissioner after hearing argument by the parties to be
“ excipiable ”. The Native Commissioner ordered it to be struck
out and ordered defendant to file a fresh plea within seven days.

Defendant has lodged an appeal against this ruling or order
on the grounds that it was wrong in law in several respects.

258

Defendant has at the same time applied for review of the
proceedings on the grounds that the Native Commissioner’s action
constituted a grave irregularity or illegality in that the rules of the
Native Commissioners’ Courts do not provide for the taking of
“ exceptions

We are somewhat surprised that the defendant should pursue
either the appeal or the application for review, after plaintiff
had abandoned the order for costs which was made in his favour.

Perusal of the Native Commissioners’ Courts rule (No. 81)
would indicate that an appeal lies only in respect of —

(a) any judgment of the nature described in rule 54;

(h) any rule or order made in such suit or proceeding and
having the effect of a final judgment including any order
as to costs.

Obviously the Native Commissioner’s ruling does not fall within
either category and therefore no appeal lies.

The expression “ grave irregularity ” or “ illegality ” occurring in
section twenty-two of the Native Appeal Court rules dealing with
the review of proceedings are terms which connote male fides or
improper conduct on the part of the judicial officer. Mere errors
of judgment would not be “ grave irregularities ” or “ illegalities ”.
As the application for review does not allege any improper con-
duct on the part of the Native Commissioner, the proceedings in
the case before us are not reviewable.

In interpreting and applying the new rules of the Native Com-
missioners’ Courts it would be well for parties to keep in mind
the provisions of section fifteen of Act No. 38 of 1927, which
have been frequently invoked by the Native Appeal Court where
there has been a tendency on the part of litigants to rely on
technicalities. Parliament has expressly laid down that judgments
shall not be reversed through irregularity in the proceedings unless
substantial prejudice has resulted. The new rules are intended
to improve the machinery for settlement of disputes between the
parties. They must be used for that purpose not as weapons
for further tactical disagreement. For instance, rule 47 clearly
indicates the principle behind procedure in Courts of Native Com-
missioner, viz. to do things in such manner “ as may aid in the
disposal of the notion in the most expeditious and least costly
manner ”. Defendant is quibbling about the expressions “ excep-
tion ” and “ excipiable ”, but if the provisions of rule 44 be read
with rule 84 it will be appreciated that the action taken by the
Native Commissioner was substantially and in effect within the
competence of the rules.

We observe from the record that defendant was represented by
Mr. Robert Levin who describes himself in an affidavit as an
articled clerk. As such he is not entitled to appear in a Native
Commissioner’s Court, despite the provisions of section twenty-one
(3) of Act No. 23 of 1934.

The appeal and the application for review are both dismissed
with costs.

Rein and Venter (Members) concurred.

For Appellant: Mr. Selvan of Messrs. Behrmann, Haarhoff &
Cohen, Springs.

For Respondent: Mr. E Judes, Springs.

CENTRAL NATIVE APPEAL COURT.

OLIPHANT V. MOKOOI.

N.A.C. CASE No. 33/52.

Johannesburg: 21st October, 1952. Before Marsberg, President,
De Beer and Hattingh, Members of the Court.

259

Police — Action against Native Constable employed by South
African Railways and Harbours Police — Damages for false
imprisonment — Action not commenced within four months after
cause of action had arisen — Whether protection afforded by
section thirty of Act No. 14 of 1912 applies to Railway Police —
Section fifty-seven (1), Act No. 22 of 1916, as amended.

In an action by a Native teacher claiming damages for wrong-
ful imprisonment against a Native constable in the employ of the
South African Railways and Harbours Police, the latter had
pleaded specially that plaintiff was debarred by section thirty
of Act No. 14 of 1912, read with section fifty-seven of Act No. 22
of 1916, as amended by section eleven of Act No. 36 of 1939, from
bringing the action inasmuch as plaintiff had failed to commence
the action within four months after the cause of action had
arisen. A Native Commissioner’s Court having uphelp the
special plea, in an appeal, it was contended by appellant that it
was necessary for defendant to prove that he was a Native
constable in the employ of the South African Railways and
Harbours Police and appointed to maintain law and order on the
Railways and was carrying out his duty when he arrested plaintiff.
It was also contended that a member of the South African
Railways and Harbours Police is not entitled to the indemnities
provided by section thirty of Act No. 14 of 1912.

Held: That as plaintiff in his summons had described defendant
as a “Native Constable of c/o S.A.R. & H. Police” it was
not necessary for defendant to prove that he was a police-
man.

Held further: That the argument that the onus was on

defendant to show that he was carrying out his duty when
he arrested plaintiff, was without substance.

Held further: That a person appointed for the purpose of
maintaining law and order upon Railways and who carries
out that duty is entitled to the indemnities to which a member
of the South African Police would in like circumstances be
entitled.

Cases referred to:

Mphelo V. Bruwer [1951 (1), S.A. 433 (T.P.D.]

Statutes etc. fererred to:

Section thirty Act No. 14 of 1912.

Section fifty-seven (1) Act No. 22 of 1916, as amended by
section eleven of Act No. 26 of 1939.

Appeal from the Court of the Native Commissioner, Krugers-
dorp.

Marsberg (President), delivering judgment of the Court; —

On 31st December, 1951, plaintiff, Wilfred Oliphant, sued
defendant, Elikana Mokooi, described as Native constable and in
the employ of the South African Railways and Harbours Police
at Krugersdorp, in the Native Commissioner’s Court at Krugers-
dorp for payment of £150 damages for false imprisonment.
Plaintiff alleged that on or about 30th March, 1951, and at
Krugersdorp Railway Station defendant wrongfully and unlaw-
fully arrested him and marched him to the Krugersdorp Police
Charge Office where he was detained.

Defendant in a preliminary plea claimed that “ plaintiff is
debarred by section thirty of Act 14 of 1912, read with section
fifty-seven of Act No. 22 of 1916, as amended by section eleven of
Act No. 36 of 1939, from bringing this action in as much as plain-
tiff has failed to commence this action within four months after
the cause of action had arisen.

Defendant says that at all relevant times and at the place
alleged in the summons, he was acting in the execution of his
duties under Act No. 14 of 1912 and the regulations promulgated
thereunder.”

The Native Commissioner upheld this plea and dismissed the
summons with costs.

260

Plaintiff has appealed against this judgment on the following
grounds : —

The Native Commissioner erred in law in the following
respects : —

1. He found that it was not necessary to prove that the

defendant is a Native constable in the employ of the
South African Railways and Harbours Police.

2. He found that it was not necessary to show that the

defendant was a person appointed to maintain law
and order on the Railways.

3. He found that it was not necessary to show that the

defendant was carrying out his duty when he arrested
the plaintiff.

4. He found that Mphelo v. Bruwer was a direct precedent

whereas Mphelo’s case relates to the Police Act and
not to the South African Railways and Harbours
Police.

5. He found by implication that section thirty of Act No.

14 of 1912 is incorporated into the South African
Railways and Harbours Act by section fifty-seven (1) of
Act No. 22 of 1916 and that the limitation of time
provided in the former act is included among the
indemnities.

6. The Native Commissioner erred in fact by holding that

on the language of the summons it could be found that
the defendant was a duly appointed constable acting
in the course of his duties as a constable.

Argument before us has taken the matter no further than where
it rested before the Native Commissioner. For the purposes of
our judgment it will suffice to quote his written judgment; —

“1. In this matter the plaintiff, who is a Native teacher
is sueing the defendent. who is described as a Native con-
stable whose full and further names and occupation are to
the plaintiff unknown, of c/o South African Railways and
Harbours Police, Krugersdorp, for damages for false
imprisonment.

2. In paragraph 2 of the particulars of the summons the
defendant is further described as in the employ of the South
African Railways and Harbours Police, Krugersdorp. It is
further asserted that the defendant “wrongfully and unlaw-
fully arrested the plaintiff and handcuffed the plaintiff ”.

3. In his preliminary plea the defendant states that
plaintiff is debarred by section thirty of Act No. 14 of 1912
read with section fifty-seven of Act No. 22 of 1916, as
amended by section eleven of Act No. 36 of 1939, from
bringing this action inasmuch as plaintiff has failed to
commence this action within four months after the cause
of action had arisen.

4. Section thirty of Act No. 14 of 1912 reads as follows; —

‘ For the protection of persons acting in the execution of
this Act every civil action against any person in respect
of anything done in pursuance of this Act or the regula-
tions, shall he commenced within four months after the
cause of action has arisen, and notice in writing of any
civil action and the cause thereof shall be given to the
defendant one month at least before the commencement
thereof.’

5. Now, the wording of this section is very clear and
leaves no doubt as to the procedure to be followed against
a person acting in the execution of this Act.

6. Sub-section (1) of section fifty-seven of Act No. 22 of
1916, as amended by section eleven of Act No. 36 of 1939,
reads as follows; —

261

‘ The Governor-General may, in manner provided in the
Railways and Harbours Service Act, 1925, appoint so many
persons as may be deemed necessary for the duty of
maintaining law and order upon the Railways and at the
Harbours, and when any such person so appointed is carry-
ing out that duty, he shall be capable of exercising all such
powers and shall perform all such functions as are by law
conferred on or are to be performed by a member of the
South African Police Force, established under the Police
Act, 1912, and shall be liable in respect of Acts do/w or
ommitted to be done to the tame extent as he would have
been liable in like circumstances if he were a member of
the said Force, ami shall have the benefit of all the irtdem-
nities to which a member of such Force would in like
circumstances be entitled.’

7. There can be no doubt that a person appointed for the
purpose of maintaining law and order upon Railways and
who carries out that duty is entitled to the indemnities to
which a member of the S.A.P. would in like circumstances be
entitled.

8. The question to be determined therefore is whether the
defendant is such a person.

9. The argument advanced by Mr. Lubinsky in favour
of his contention that defendant must show that he was
acting in the execution of his duty and that his action was
lawful, are substantially the same as those advanced by
Council for appellant in the case Mphelo v. Bruwer, 1951 (1),
S.A. 433 (T). This argument can be rejected for the same
reasons as that of the learned Judge.

10. Mr. Lubinsky’s argument that defendant must show that
he was a policeman must also be rejected because plaintiff
has described him as a ‘ Native constable of c/o S.A.R. & H.
Police ’ and plaintiff cannot now deny that defendant is in
fact a ‘ Native Constable ’. The averment that defendant is
in the employ of the S.A.R. & H. Police also brings the
defendant within the categoty of a ‘servant’ of the Railway
Administration and it is clear from section fifty-six of Act
No. 22 of 1916, as amended, that an authorised servant of the
S.A.R. & H. also has the power of arrest. The averments in
paragraph (4) of the summons describes exactly the procedure
prescribed by this section.

11. The only conclusion one can arrive at on the summons
is that the defendant is a Policeman and there is therefore
also no substance in the argument that he must show at this
stage, that he is a Policeman.

12. It is also clear ex facie the summons that action was
not commenced within four months.

13. The defendant’s preliminary plea is upheld and the
Court holds that defendant is entitled to the protection of
section thirty of Act No. 14 of 1912, and the summons is
dismissed with costs.”

The appeal is dismissed with costs.

Hatting and De Beer (Members) concurred.

For Appellant: Adv. Mr. I. Lubinsky, instructed by Mr. H. W.
Chain, Johannesburg.

For Respondent: Adv. Mr. A. E. G. Trollip, instructed by

Assistant Government Attorney, Johannesburg.

NORTH-EASTERN NATIVE APPEAL COURT.

NTANZI V. MPANZA.

N.A.C. CASE No. 78/52.

262

Eshowe: 21st October, 1952. Before Steenkamp, President; Balk

and Oftebro, Members of the Court.

ZULU CUSTOM.

Sisa: Object to avoid attachment, prior to execution being levied:

not illegal.

Summary: Plaintiff sisaed cattle with defendant so that they

could not be attached under a judgment granted against
plaintiff in a Chief’s Court. This transaction took place
before execution was levied.

Held: That no Native law or custom is known making it illegal
for a judgment debtor to do away with his assets before
execution is levied against him.

Statutes, etc., referred to: —

Native Commissioners’ Courts Rule 79.

Appeal from the Court of Native Commissioner, Nkandhla.

Steenkamp (President) : • —

The Court condoned the late noting of the appeal.

It is not necessary to quote the pleadings in extenso. Suffice
to state that plaintiff’s claim before the Chief was in respect of
eight head of sisaed cattle. The Chief gave judgment in favour
of plaintiff. An appeal was noted to the Native Commissioner,
who altered the Chief’s judgment to one for defendant with costs.

In the Native Commissioner’s Court only the plaintiff gave
evidence and at the conclusion of his evidence the attorney for
defendant applied for, and was granted, an amendment of his
plea by the addition of the following alternative plea: —

“ Defendant pleads that, even if the Court accepts plaintiff’s
version, then plaintiff is debarred from recovering the cattle
by operation of law, in that in pari delicto potier est condictio
defendentis vel possidentis."

The Court allowed this special plea and stated that as plaintiff
cannot on his own showing succeed on his claim the Court enters
judgment as follows: —

“ The appeal is allowed, with costs, and the Chief’s
judgment is altered to one for defendant, with costs.”

An appeal has now been noted to this Court. It is only neces-
sary to quote the second ground of appeal, which reads that the
learned Native Commissioner erred in holding that the appellant’s
action depended upon his illegal conduct or that he was equal
in guilt with the defendant and that defendant as possessor of the
goods in dispute was allowed to succeed.

The facts briefly, as adduced by the plaintiff, are that he sisaed
three head of cattle with the defendant because he was hiding
them, as a judgment of the Chief’s Court had been entered against
him, and he hid the cattle so that they could not be attached
under that judgment.

The illegality depended on is that a judgment debtor is not
allowed to do away with his assets if a judgment had been granted
against him. I can find no law, nor has any been mentioned by
the Native Commissioner in his reasons for judgment, that it is
illegal for a judgment debtor to do away with his assets before
execution is levied against him. The only offence a judgment
debtor can commit is when he gives false information to the
Messenger of the Court when that officer seeks to attach property
— see section 79 of the Native Commissioners’ Courts Rules.

The judgment which the judgment debtor, that is the present
plaintiff, attempted to evade was one given in a Chief’s Court,
and there is no provision in the Native Chiefs’ Courts Rules that
it is an offence to hide assets. I know of no Native Law and
Custom under which it is a criminal offence for a judgment debtor
to dispose of his stock after judgment had been given against him

263

and before execution is levied. If there is such a law then it was
incumbent on the defendant to adduce evidence to that effect.

The Native Commissioner has erred in entering a judgment on
the application of defendant’s attorney and therefore, in my
opinion, the appeal should be allowed with costs and the Native
Commissioner’s judgment set aside and the record returned to him
for hearing to a conclusion and a decision on the merits of the
case.

Balk (Permanent Member): I concur.

Oftebro (Member): I concur.

For Appellant: Mr. W. E. White.

For Respondent: Mr. H. H. Kent, instructed by Messrs. Bestall
& Uys.

NORTH-EASTERN NATIVE APPEAL COURT.

DHLUDHLA v. DHLUDHLA.

N.A.C. CASE No. 79/52.

Eshowe: 22nd October, 1952. Before Steenkamp, President;
Balk and Oftebro, Members of the Court.

ZULU CUSTOM.

Customary Union — Affiliation — Right to confer status upon wives
at any time, under Zululand Code of Native Law of 1878. no
longer in force after promulgation of Natal Code of Native Law
of 1932 — right to confer status on his wives under the former
law not vested unless exercised while that law was still in force.

Summary: In an Estate Enquiry, present appellant based his
claim that he is the deceased’s indhlunkulu and general heir
on the ground that his mother, who was the deceased’s fifth
wife, was affiliated to the deceased’s indhlunkulu. It was
alleged that the affiliation occurred in about January, 1951.

Held: That the position falls to be determined not by reference
to a repealed law, but to the law in force at the time when
the status was conferred upon the wife concerned.

Held further: That in the absence of any saving clause in the
1932 Natal Code of Native Law the deceased had no vested
right to confer status on his wives at all times after the cele-
bration of his customary unions with them, merely because
his initial or some of his customary unions were contracted
when the 1878 Zululand Code of Native Law was in force.

Held further: That the deceased could have exercised the right
in question up to the time that the 1932 Natal Code of Native
Law came into force, i.e. up to the 1st November, 1932.

Cases referred to:

Nene v. Nene 1942 N.A.C. (T. & N.) 34.

Statutes referred to:

Section 3 (2) of Govt. Notice No. 1664 of 1929, as amended.
Sections ninety-seven, one hundred and one (1) (6), one
hundred and one (2), one hundred and one (3) and one
hundred and ten (e) of the Natal Code of Native Law of
1932.

Appeal from the Court of the Native Commissioner. Nkandhla.
Balk (Permanent Member): —

264

This is an appeal from the finding given by an Assistant Native
Commissioner in favour of Maholoyi Dhludhla in an enquiry held
in terms of section 3 (2) of the regulations for the administration
and distribution of Native estates published under Government
Notice No. 1664 of 1929, as amended, to determine the person
entitled to succeed as indhlunkulu and general heir to the property
concerned in the estate of the late Mzila Dhludhla (hereinafter
referred to as “ the decased ”).

The appeal is brought by Kami Dhludhla on the ground that
the finding is against the evidence.

It is common cause that —

(1) the deceased died in about February, 1951;

(2) he had in all seven wives;

(3) the deceased’s first wife, Mamhlogo Gezile, constituted his

indhlunkulu;

(4) there are no sons in the deceased’s indhlunkulu, the only son

therein having died in infancy;

(5) the deceased’s second wife, Mampungose, constituted his

ikohlo:

(6) Nkabiyana is the only surviving son in the deceased’s
ikohlo, the only other son therein having died without
issue;

(7) Mkosi is the eldest son of the deceased’s third wife, Okanan-
qele;

(8) Maholoyi who, as indicated above, was found by the Native

Commissioner to be the indhlunkulu and general heir of
the deceased, is the latter’s eldest son by his fourth wife,
Mamhlongo Bonangwamuntu;

(9) Kami (appellant) is the eldest son of deceased’s fifth wife,

Mantuli;

(10) deceased’s sixth wife, Mayangwayo, had no sons;

(11) Mhlungu is the eldest son of the deceased’s seventh wife,

Mabutelezi.

It emerges from the evidence that the deceased was a com-
moner and that he did not appoint an igadi.

Maholoyi based his claim that he is the deceased’s indhlunkulu
and general heir on the ground that his mother, Mamhlongo
Bonangwamuntu, who was the deceased’s fourth wife, was at the
time of the celebration of her customary union to the deceased,
affiliated to his indhlunkulu. Nkabiyana, the heir to the deceased’s
ikohlo, supported Maholoyi’s claim. Counsel for respondent con-
tended that this factor was a very cogent one since it was inimical
to Nkabiyana’s interests to support Maholoyi’s claim in that in
the event of no affiliation to the indhlunkulu being proved,
Nkabiyana would be the deceased’s indhlunkulu and general
heir in terms of section one hundred and ten (e) of the Natal
Code of Native Law published under Proclamation No. 168 of
1932. But it is by no means clear that Nkabiyana appreciated
that that was the position so that the contention loses much of
its force. Moreover, the only evidence in support of Maholoyi’s
claim is his own and that is hearsay; and it emerges therefrom
that his uncle, Mpunga. who was not called, has firsthand
knowledge of the facts in issue.

Kami based his claim that he is the deceased’s indhlunkulu and
general heir on the ground that his mother, Mantuli, who was the
deceased’s fifth wife, was affiliated to the deceased’s indhlunkulu.

Kami, however, admitted in his evidence that the alleged affilia-
tion of his house to the deceased’s indhlunkulu occurred about a
month before the deceased’s death, i.e. in about January, 1951,
which was long after the celebration of his (Kami’s) mother’s
customary union to the deceased. Kami also admitted in his
evidence that the lobolo cattle paid for his mother were kraal
property and had not belonged to any particular house.

265

In this connection Counsel for appellant submitted that the
deceased’s right under the Zululand Code of Native Law of 1878
to confer status upon his wives at any time subsequent to the
celebration of his customary unions with them, continued not-
withstanding the provisions of section one hundred and one (2)
read with sub-section (1) (b) and (3) of section ninety-seven of
the 1932 Natal Code of Native Law and notwithstanding that
there was no saving clause in that Code preserving the right in
question. But that submission is untenable since the position
obviously falls to be determined not by reference to a repealed
law, but to the law in force at the time when the status was
conferred upon the wife concerned, in this instance the law in
force in January, 1951, i.e. the 1932 Natal Code of Native Law,
and therefore in the absence of any saving clause in that law
in the respect in question, the deceased cannot be said to have
had any vested right to confer status on his wives at all times
after the celebration of his customary unions with them merely
because his initial or some of his customary unions were con-
tracted when the Zululand Code of Native Law of 1878 was in
force. Admittedly he could have exercised the right in question
up to the time that the 1932 Natal Code of Native Law came
into force, i.e. up to the 1st November, 1932, but he was
precluded from doing so thereafter by the provisions of that
Code, see the penultimate and last paragraphs at page 35 of the
report of Nene v. Nene, 1942, N.A.C. (T. & N.), 34.

It follows that in the light of Kami’s admissions referred to
above and the provisions of section one hundred and one (2) read
with sub-sections (1) {b) and (3) of section ninety-seven of the 1932
Natal Code of Native Law, his house cannot be regarded as
having been affiliated to the deceased’s indhlunkuhi and his claim
therefore fails.

In the circumstances I am of opinion that the appeal should be
dismissed with costs, but that the Assistant Native Commissioner’s
finding that Maholoyi is the deceased’s general and indhlunkulu
heir should be set aside since it is not supported by proper
evidence, as is clear from what has been stated above, and that
the enquiry should be remitted to him to hear Mpunga Dhludhla’s
evidence and that of any other available witness who may have
firsthand knowledge of the facts in issue and thereupon for a
fresh finding.

Steenkamp (President): I concur.

Oftebro (Member): I concur.

For Appellant: Mr. H. H. Kent instructed by Messrs. Bcstall
&. Uys.

For Respondent: Mr. W. E. White.

SOUTHERN NATIVE APPEAL COURT.

QHOTSWAYO v. TAFENI.

N.A.C. CASE No. 36/52.

Umtata: 24th October, 1952: Before Warner, Actg. President;
Nel and Van Zyl, Members of the Court.

LAW OF PROCEDURE.

Practice and Procedure — Appeal to Native Commissioner’s Court
against a default judgment in Chief’s Court — Objection to hear-
ing of such appeal overruled — This order not a final judgment
and therefore not appealable.

266

Appellant issued summons against respondent to appear in the
Court of Chief K. D. Matanzima on 30th January, 1952, to
answer a claim for four head of cattle or their value £48.
Respondent was in default on the return day and again on 1st
February, 1952, to which date the case had been postponed and
on which day judgment was given in favour of appellant. On
5th February, 1952, respondent noted an appeal to the Native
Commissioner’s Court. Appellant excepted to the hearing of the
appeal, inter alia on the following ground: “That the appeal
against the judgment of the Chiefs Court discloses no cause
of action in that it does not allege that defendant applied to the
Chief who gave judgment (or his successor in office) to rescind
such judgment as provided for in section 2 (3) of Government
Notice No. 2885 of 1951.”

The Native Commissioner dismissed the exception and appellant
has appealed against this ruling.

An objection was lodged to the hearing of the appeal in this
Court on the grounds that the Native Commissioner’s Court’s
Order which is appealed against is not one against which an
appeal lies in terms of rule 81 (2) of the rules published under
Government Notice No. 2886 of 9th November, 1951, in that —

(o) it is not a judgment of the nature described in rule 54 of
the said rules; and

(b) it is not a rule or order having the effect of a final
judgment.

Held:

(1) A party to a suit in a Chief’s Court may appeal against

any judgment or order of such Court and the case must
then be re-heard and re-tried in the Court of the Native
Commissioner as if it were one of first instance in that
Court.

(2) That the Native Commissioner’s order dismissing the

exception does not have the effect of a final judgment
and is therefore not appealable.

(3) That as the award of costs has not been specifically

stated as a ground of appeal in terms of the Native
Appeal Court Rules they cannot be considered.

The appeal is struck from the roll.

Cases referred to:

Pretoria Garrison Institutes v. Danish Variety Products (Pty.),
Ltd., 1947 (1), S.A. (T.P.D.) 245.

Nkwenkwana v. Lizo, 1947 (N.A.C.) (C. & O.), 115.

Statutes referred to:

Act No. 32 of 1944, sections eighty-one and eighty-three.

Government Notice No. 2885 of 1951, sections 2 (3) and
9 (1) and 12 (4).

Government Notice No. 2886 of 1951, sections 81 (2) and
54.

Appeal from the Court of the Native Commissioner, Cofimvaba.
Warner (Acting President):

Plaintiff issued summons against defendant to appear in the
Court of Chief K. D. Matanzima on the 30th January, 1952, to
answer a claim for four head of cattle or their value £48.

Defendant was in default on the return day and the case was
postponed to the 1st February, 1952, on which day defendant
still being in default, judgment was given for plaintiff as prayed
with costs.

On the 5th February, 1952, defendant noted an appeal against
this judgment to the Court of the Native Commissioner for the
District of St. Marks.

Plaintiff excepted to the hearing of the appeal on the following
grounds : —

267

(a) That the appeal is vague and embarrassing and bad in law,
in that respondent (plaintiff) is not informed as to what
case he has to meet. The notice of hearing appeal against
the judgment of the Chief’s Court, presupposes that the
default judgment granted by the Chief’s Court has been
set aside, which is not the case.

(/)) The appeal against the judgment of the Chief’s Court
discloses no cause of action in that it docs not allege that
appellant (defendant) applied to the Chief who gave the
judgment or his successor in office to rescind such judg-
ment as provided for in section 2 (3) of the regulations
published under Government Notice No. 2885 of 9th
November, 1951.

The Native Commissioner dismissed the exception with costs
and plaintiff has appealed against this ruling on the grounds that
the Native Commissioner erred in dismissing Plaintiff’s exception
and in ruling that it was not necessary for the defendant to
exhaust his remedies under regulation 2 (3) of Government Notice
No. 2885 of 1951.

An objection has been lodged to the hearing of the appeal on
the grounds that the judgment or order of the Native Commis-
sioner’s Court which is appealed against is not one against which
an appeal lies in terms of rule 81 (2) of the rules published under
Government Notice No. 2886, dated 9th November, 1951, in that —

(a) it is not a judgment of the nature described in rule 54 of

the said rules; and

(b) it is not a rule or order having the effect of a final judg-
ment.

Regulations for Chiefs’ and Headmens’ Civil Cour s were
promulgated by Government Notice No. 2885 of the 9th
November, 1951. Section 2 of these regulations provides for
the hearing or judgment in the absence of parties. The Chief
has the power to give judgment against a defendant if there is
no appearance by him or on his behalf. A party to an action
in which a default judgment is given may within 60 days after
such judgment has come to his knowledge apply to the Chief
who IS given power to rescind such judgment.

Section 9 (1) of the regulations reads as follows: —

“ Any party dissatisfied with any judgment or order of a
Chief’s Court may, within forty days from the date of the
pronouncement thereof appeal against such judgment or order
to the Court of the Native Commissioner having jurisdiction
by notifying the Clerk, of the said Court either in person or
through a legal representative.”

Section 12 (4) of the regulations provides that upon the day
fixed for the appearance of the parties the Court of the Native
Commissioner shall proceed to re-hear and re-try the case as if
it were of first instance in that Court and may give such judg-
ment or order thereon as justice may require.

A Chief’s Court is a creature of statute and is bound by the
stature which created it.

The Rules for Chiefs’ and Headmens’ Civil Courts do not
provide for the lodging of objection or exceptions to the hearing
of appeals in the Court of the Native Commissioner. A party
to a suit in a Chief’s Court may appeal against any judgment
or order of such Court and the case must then be re-heard and
re-tried in the Court of the Native Commissioner as if it were
one of first instance in that Court.

In the case of an appeal from a Native Commissioner’s Court
to this Court, however, the position is different because section
81 of Government Notice No. 2886 of 1951 has prescribed the
judgments or orders against which an appeal may be lodged.
Sub-section (2) of this section allows a party to appeal against —
(a) any judgment of the nature described in rule 54; and
13347-3

268

(6) any rule or order made in such suit or proceeding and
having the effect of a final judgment including any order
as to costs.

In the present case, the order dismissing the exception is not
a judgment of the nature described in rule 54 so the only question
to be decided is whether it is a rule or order having the effect
of a final judgment.

The wording of section 81 (2) {b) of the Rules of Courts of
Native Commissioner is practically identical with that of section
eighty-three {b) of the Magistrates’ Courts Act, No. 32 of 1944.
In dealing with an appeal against an order of a Magistrate’s Court
Murray J. stated on page 248 in the case of Pretoria Garrison
Institutes v. Danish Variety Products (Pty.), Ltd. fl947 (1), S.A.
(T.P.D.), 245] : The finality of the order renders it appealable
only if the matter on which the order is granted is one which
forms a definite part of the first issue between the parties so
that its decision disposes once and for all of that part of the
suit and directly affects the final issue. ” He also stated : “ It is
clear that the concluding words of section eighty-three (5) —
‘ including any order as to costs ’ — do not create the position that
merely because a rule or order carries an ancillary order for
costs the rule or order is itself consequently appealable.”

In applying the tests laid down in the case quoted above, we
hold that the order of the Native Commissioner dismissing the
exception does not have the effect of a final judgment and is
therefore not appealable.

The award of costs has not been specifically stated as a ground
of appeal in terms of the Native Appeal Court Rules and,
following the ruling in the case of Nkwenkwana v. Lizo [1947,
N.A.C. (C. & O.), 115] cannot be considered.

The objection is sustained, with costs and the appeal is struck
off the roll.

Nel and Van Zyl (Members), concur.

For Appellant: Mr. Matanzirna, Engcobo.

For Respondent: Mr. Muggleston, Umtata.

SOUTHERN NATIVE APPEAL COURT.

SlYUNGUMA V. SIYUNGUMA.

Case No. 37 '52.

Umtata: 24th October, 1952: Before Warner, Acting President;

Nel and Van Zyl, Members of the Court.

TEMBU CUSTOM.

Marriage by Native Custom — Campetent to marry a seed hearer
to a great house when there is a son in qadi house.

Appellant, son of the qadi to the great house, sued respondent
in the court below for a debate of account in the estate of the
late Siyunguma Kama’s great house, and delivery thereof to
appellant. Deceased had four wives. There was no male issue
of the great house. After the wife of the great house had
passed child-bearing age, deceased married a fifth wive as seed
bearer to the great wife. Respondent is the son of the seed
bearer. Judgment in the Court below was given in favour of
respondent.

The appeal is against the judgment on the grounds that appel-
lant was already born when deceased married his fifth wife and
therefore deceased had no power to nominate Nombewu (5th
wife) as seed bearer, and further that as the seed bearer was not
related to the woman she replaced, the deeeased did not follow
true Tembu custom.

269

Held: That it is competent for a husband to marry a seed
bearer to a principal house even if there is already a son
in the qadi to such house.

Appeal fails.

Cases referred to:

Moni V. Msongelwa, 5, N.A.C., 151.

Kwaza Kwaza, 5, N.A.C., 376.

Yoywana v. Yoywana, 3, N.A.C., 301.

^orks referred to: South African Native Law, 2nd edition,

page 251 (V^itfield).

Appeal from the Court of the Native Commissioner, Mqanduli.
Warner (Acting President):

Plaintiff sued defendant for a debate of account of the estate
of the late Siyunguma Kama’s great house and delivery thereof
to plaintiff.

In his plea defendant stated that he was the heir to the great
house, but should plaintiff be declared the heir to the great
house of the late Siyunguma, he (defendant) was agreeable to
a debate of accounts.

After hearing evidence, the Assistant Native Commissioner
gave judgment for defendant as prayed with costs and plaintiff
has appealed on the following grounds: —

1. That the Court wrongly interpreted the Native Law and

Custom applicable in this case more particularly in that —

(a) the plaintiff having been born before the marriage of

defendant’s mother to the late Siyunguma the latter
had no power to nominate Nobuwe as seedbearer to
his great wife;

(b) the late Siyunguma failed to follow Tembu Custom in

drawing a prospective seedbearer front a family not
related to that of the woman for whom she was to
be seedbearer;

required overwhelming proof which is lacking in this
case.

2. That the judgment is against the weight of evidence and

probabilities of the case.

From the record, we are satisfied that the following facts have
been established: —

1. The parties are Tembus practising Tembu custom.

2. At one time the late Siyunguma had four wives.

3. The great wife had not borne a son.

4. The qadi wife to the great house had a son, plaintiff.

5. Siyunguma then married a fifth wife by native custom, the

great wife then being past child-bearing age.

6. When Siyunguma asked for his fifth wife, Nobuwa, he told

her people that his wife in the great house had no male
children and he wanted her as seed bearer in that house.

7. When the duli party took Nobuwa to Siyunguma’s kraal he

announced publicly that he was placing her in the great
house as seed bearer.

8. Nobuwa lived in the great house of Siyunguma and gave

birth to a son, defendant.

9. Shortly before his death, Siyunguma called a meeting at

which he allocated the stock of his various houses and
declared that defendant was the heir to his great house.

10. After Siyunguma’s death, as his sons were still minors,

Mabulana was in charge of all the estate property.

11. Mabulana died and plaintiff and others allocated the stock,

allocating the stock of the great house to defendant.

12. All the members of the family accepted defendant as heir

of the great house and when plaintiff gave evidence in a
case on 16.1.1951, he stated that he was from the right
hand house and did not claim to be the heir in the great
house.

270

13. Nobuwa the alleged seed bearer to the great house was not
of the same family as the wife in the great house.

It has been argued that, if Siyunguma did place his fifth wife
Nobuwa as seed bearer in the great house, his action was
not in accordance with native custom because there was already
an heir in the aadi to the great house, so that defendant would
not oust plaintiff from his position as heir to the great house.
This argument is based on the statements in the cases of Moni
V. Msongelwa (5, N.A.C., 151) and Kwaza v. Kwaza (5, N.A.C.,
376) to the effect that it is most unusual for a wife to be married
into a house where there is already an heir and when this is
done, the woman married to replace the dead wife is generally
taken from the family of the deceased wife. We have been
asked to hold that this statement also means that it is most
unusual for a wife to be married into a house where there is
already an heir to the qadi of that house, because under Native
Custom, the heir to a qadi house, is also heir to the house to
which the qadi is affiliated if there is no heir in such principal
house.

The matter was put to the Native assessors who stated that
it is not in accordance with Native Custom to place a seed bearer
in a house while he wife of that house is still alive even if she
has passed child-bearing age, as a seed bearer is placed in a
house only after the wife of that house has died. This expres-
sion of custom was not unanimous and we are unable to accept
it in view of the statement in the case of Yoywana v. Yoywana
(3, N.A.C., 301) that it is quite in accordance with custom for
a man to marry a seed bearer for either of his two principal
wives who owing to either death or barrenness produces no heir.

The Native assessors are unanimous however in stating that
where a seed bearer has been placed in a principal house, a son
borne by this seed bearer would become the heir to this house
and would oust the eldest son in the qadi house from his posi-
tion as heir to the principal house. This expression of opinion
is accepted as being consistent with previous decisions. In
Yoywana’s case (supra) it was stated that it is quite in accordance
with custom for a man to marry a seed bearer for either of his
two principal wives and this statement was not qualified by the
words “ unless there is an heir to the qadi to such principal
house ”. The object aimed at in placing a woman in a particular
house is to ensure that that house should have an heir (see page
251 of Whitfield’s South African Native Law (Second Edition)
and cases quoted thereon].

We are satisfied that the late Siyunguma placed defendant’s
mother Nobuwa in the great house as seed bearer in accordance
with Native Custom so that defendant is the heir to the great
house.

The appeal is dismissed with costs.

Nel and Van Zyl (Members) concur.

For Appellant: Mr. Hughes, Umtata.

For Respondent: Mr. Muggleston, Umtata.

SOUTHERN NATIVE APPEAL COURT.

MACUBENI V. MACUBENI.

N.A.C. CASE No. 38/52.

Umtata: 24th October, 1952. Before Warner, Acting President;
Nel and van Zyl, Members of the Court.

271

TEMBU CUSTOM.

Native Estates — Ownership of Estate Stock does not vest in Widow

of any House— Widow's Rights to support after Husband’s

Death.

Appellant sued defendant unsuccessfully to have the stock
belonging to the Great House and the Qadi to the Great House at
her kraal for her maintenance and support. She also sued for
the return of 40 sheep and 3 horses (the property of the Great
and Qadi Houses of her late husband).

The appeal is against the judgment in favour of defendant;

Held:

(1) That as plaintiff had 25 head of cattle, including 5 cows

at her kraal for the support of herself and one child
and as she had the use of 3 lands (which defendant’s
children assisted in ploughing) it is clear from her own
evidence that she received adequate support.

(2) That it is established native law that if the heir does not

adequately support a widow she has an action against
him to compel him to do so and may even be granted
an order by the Court to have certain of the estate cattle
placed at the kraal where she resides for her support.

(3) That she has in no sense any dominium in such cattle and

cannot dispose of them without consulting the heir.

The Appeal fails.

References:

Whitfield, South African Native Law, page 254. Second
Edition.

Appeal from the Court of the Native Commissioner, Umtata.

Warner (Acting President):

Plaintiff is the widow of the late Macubeni Kaba in the Qadi to
the Great House and resides at her late husband’s kraal.
Defendant is the son and heir of the late Macubeni Kaba in his
Right Hand House and by virtue of the fact that the heir to the
Great House is dead and there is no son in the Qadi to the
Great House, is also the heir to these houses.

Plaintiff claimed 40 sheep and 3 horses alleging that defendant
had wrongly and unlawfully removed this stock from the plaintiff’s
kraal.

Defendant denied that his possession of the stock claimed was
unlawful.

After hearing evidence the Acting Native Commissioner gave
judgment for defendant and plaintiff has appealed on the follow-
ing grounds:

1. That the judgment was against the weight of evidence and

the probabilities of the case.

2. That the judgment is contrary to Native Custom in that the

defendant is by Native Custom entitled to have the stock
beloinging to the Great House and the Qadi to the Great
House of her late husband at her kraal for maintenance
and support.

In her evidence, plaintiff admitted that she has 25 head of
cattle, including 5 cows at her kraal for the support of herself
and one child; that she has the use of three lands and that
defendant’s children assist in ploughing these lands. It is clear
from her own evidence that she received adequate support from
defendant.

We have not been furnished with any authority for the state-
ment of Native Law contained in the second ground of appeal.

13347-4

272

It is established native law that if the heir does not adequately
support a widow, she has an action against him to compel him
to do so and may even be granted an order by the Court to have
certain of the estate cattle placed at the kraal where she resides
for her support, but she has in no sense any dominium in those
cattle and cannot dispose of them without consulting the heir (see
page 254 of N^itfield’s South African Native Law and the cases
quoted therein).

Before plaintiff can succeed in her action she must show that
she is not being adequately supported and this she has failed to
do.

The appeal is dismissed with costs.

Nel and Van Zyl (Members), concur.

For Appellant : Mr. Muggleston, Umtata.

For Respondent: Mr. Knopf, Umtata.

NORTH-EASTERN NATIVE APPEAL COURT.

DUMA d.a. v. SWALES N.O.

N.A.C. CASE No. 62/52.

Durban: 27th October, 1952. Before Steenkamp, President;

Balk and Thompson, Members of the Court.

ZULU CUSTOM.

Appeal: Amendment of grounds of appeal refused as applica-
tion not filed at least twenty-four hours prior to commence-
ment of session.

Native Estate: Community of property excluded from marriage :
Estate to be administered under Native Law and Custom.
Widow entitled to be maintained from the property of the
estate : Administrator of estate, although not himself a Native,
may sue or be sued in his representative capacity. Property
acquired by wife in civil marriage where community of
property is excluded, becomes her property and does not
form part of her deceased husband’s estate. Widow requires
the consent of the heir for disposal of estate assets.

Summary: The administrator of the estate of the late Amos
Duma, duly appointed by a Native Commissioner, sued, in
his representative capacity, the widow of the late Amos for
delivery of certain movable cottages and for her ejectment
therefrom.

Held: That as the application for amendment of the grounds
of appeal were not filed at least twenty-four hours prior
to the commencement of the session, the application could
not be allowed.

Held further: That the estate had to be administered under
Native Law and Custom as community of property was
excluded from the civil marriage of the deceased.

Held further: That the widow was entitled to be maintained
by the estate, and although the heir becomes owner of the
property left by the deceased he cannot dispossess the widow
of the right to be supported out of that property.

Held further: That the estate had to be administered under
a representative capacity, which means that the Native estate
and not the administrator of the estate is the actual plaintiff.

Held further: That, as community of property and of profit
and loss were excluded from deceased’s marriage with
defendant, defendant was entitled to such property as she
herself acquired as her own during the marriage and such
did not form part of the deceased’s estate.

273

Held further: That the widow requires the consent of the heir

for the disposal of the estate assets.

Cases referred:

Xulu V. Xulu, 1938, N.A.C. (T. & N.), 46.

Mpungose v. Mpungose, 1946, N.A.C. (T. & N.), 37.

Mvelase v. Mbhele, 1946, N.A.C. (T. & N.), 94.

Butelezi v. Tango, 1947, N.A.C. (T. & N.), 98.

Simelane v. Simelane, 1 N.A.C. (N.E.), 291.

Qolo V. Ntshini, 1 N.A.C. (S), 234.

Ex parte Minister of Native Affairs in re Molefe v. Molefe,
1946, A.D., 315.

Mokhesi N.O. v. Demas, 1951 (2), S.A. 502 (T.P.D.).

Statutes referred to:

Section twenty-two (6) of Act No. 38 of 1927.

Native Appeal Court Rule No. 14.

Sections 2 (d), 2 (c) and 4 of Government Notice No. 1664
of 1929, as amended.

Appeal from the Court of the Native Commissioner, Durban.

Steenkamp (President):

Before commencing his argument Counsel for appellant handed
in amended grounds of appeal. The Court refused to allow these
as in accordance with rule 14 applications of this nature must
be filed at least twenty-four hours prior to the commencement of
the session.

Mr. H. A. C. Swales was appointed by the Native Commissioner
of Bergville as administrator of the estate of the late Amos
Duma, who was married by civil rites, community of property
being excluded in terms of section twenty-two (6) of Act No. 38
of 1927, to Bettina Duma (the appellant) on 17th March, 1948.

Amos Duma died on 13th June, 1949, but during his lifetime
he and his wife Bettina lived together at Cato Manor Road,
Durban, where he owned two movable cottages. There is a
dispute as to whether he was owner of both cottages.

After Amos’ death the widow continued living in the one
cottage and the other was leased out to monthly tenants.

The heir to Amos’ estate is his brother by the name of Josiah
Duma.

In the Native Commissioner’s Court Mr. Swales, in his capacity
as administrator of the estate of the late Amos Duma (here-
inafter referred to as “ the respondent ”), sued Bettina Duma, the
widow (hereinafter referred to as “the appellant’’), as follows: —

(a) For delivery of two movable cottages erected by deceased

on property leased by him in Cato Manor Road, Durban,
one of which is rented and the other occupied by the
defendant (appellant).

(b) For delivery of furniture and effects. These are specified
in the summons, but for the purposes of this case it is
not necessary to repeat this.

persons occupying through her, from the movable cottages.

{d) Costs of suit.

Appellant is cited as being duly assisted by Josiah Duma, her
guardian under Native Law and Custom, who is virtually the
plaintiff in the action.

Defendant’s plea reads as follows: —

“ I say there is only one cottage. This cottage and its

contents are my property. I resist the claim.”

The Native Commissioner gave judgment for plaintiff as prayed
and against that judgment an appeal has been noted to this
Court on the following grounds: —

“ 1. The Native Commissioner erred in holding that he had
jurisdiction as one of the parties was a European.

2. The learned Native Commissioner erred in permitting Josiah
Duma to assist defendant when Josiah Duma was an
interested party hostile to the defendant.

274

3. The learned Native Commissioner erred in accepting the

evidence of Josiah Duma.

4. The learned Native Commissioner erred in ordering defen-

dant, who was lawfully married to her late husband, to
hand over all the effects and premises to the Estate.

5. The learned Native Commissioner erred in holding that both

cottages belonged to the Estate of the late Amos Duma.
The learned Native Commissioner erred in holding that
the cottage belonging to appellant should also be delivered
to plaintiff.

6. The learned Native Commissioner erred in depriving the

widow of the right of living in the late husband’s cottage,
which right defendant has always enjoyed.

7. The judgment of the Native Commissioner is against the

law and weight of evidence.”

It is only necessary to deal with grounds 4 and 6, and if these
are decided in appellant’s favour, then I think this Court should
not unduly concern itself with the other grounds.

The only witness called by respondent is Josiah Duma, the heir
to the late Amos Duma.

It is common cause that the deceased Amos and the appellant
had one daughter, age about 8 years, and that Josiah is deceased’s
heir.

After Josiah has described the property, which form assets
in the estate and that they are in the possession of the appellant,
he states that if he is given possession of the property he is
prepared to pay appellant £2 a month maintenance.

Appellant’s evidence is to the effect that the one cottage
belongs to her. She admits the other property, i.e. furniture and
effects are in her possession, except the suits and overcoat, which

she had sold to provide maintenance for herself. She also admits
that she was offered £2 a month maintenance when possession
of the assets is given to the heir, and that she declined this offer.

It is not necessary to decide whether the one cottage belonged
to appellant or to Josiah, as the legal issues as set out hereunder
will dispose of the case in favour of appellant.

Community of property having been excluded when appellant
got married to Amos, the estate of the deceased fallsi to be
administered under Native Law and Custom. This is clear from
section 2 (e) of Government Notice No. 1664 of 1929, as substi-
tuted by Government Notice No. 939 of 9lh May, 1947. This
section reads as follows: —

“ (e) If the deceased does not fall under any of the classes
described in paragraphs (a), (h), (c) and (cf) the property shall
be distributed according to Native Law and Custom.”

Paragraphs (a) to (d) have no application in marriages con-
tracted where community of property is excluded, except if the
Minister of Native Affairs should so direct in terms of paragraph
(d) III.

In the record there is no indication that the Minister has so
directed and on that aspect of the case it would appear to me
that this is a suitable case in which it might have been desirable
for the Native Commissioner to have taken steps to obtain a
directive from the Minister.

The next question is what are the legal rights of a widow con-
cerning the estate of her late husband and which has to be
administered according to Native Law and Custom and what
are the obligations of the heir towards the widow and children
of the deceased Native.

I can do no better than quote the remarks of McLoughlin (P)
in the case of Mpungose v. Mpungose, 1946, N.A.C. (T. & N.),
37 at page 40: —

“ The Native social system regards the family as a whole
and all members of the family participate in his possessions.

275

The head of a family is virtually a trustee or director of
the possessions of the family, and not, as in Common Law,
the owner.”

After the death of Amos his brother Josiah became the head
of the former’s family and therefore in slipping into his shoes,
he took over the responsibilities of the family and as mentioned
by Whitfield in his book “ South African Native Law ”, page 50
(2nd Edition): “Widows have no claim on the property of
the estate of their deceased husbands, but as long as they submit
to the authority of the heir, they are entitled to support from
such estate

Here we have a case in which the heir wants to deprive the
widow of the possessions which form the assets in the estate,
and it is difficult to see how she could be supported from such
estate if the heir wants to render that estate non-existant. An
offer of £2 a month with no guarantee except criminal sanctions
prescribed under section one hundred and sixty-eight of the Code,
seems very poor compensation and may well be not enforced if
the heir has squandered the proceeds of the assets and has no
other means to meet his obligations to support the widow and
her child.

There is also the case of Xulu v. Xulu, 1938, N.A.C. (T. & N.),
46, where on page 48 the following remark occurs: —

“ We are of opinion that plaintiff, though heir, must allow
the widow to continue to use the stock at that kraal (meaning
the kraal of her late husband) under his supervision.”

Stafford in his book “ Principles of Native Law and the Natal
Code ” (2nd Edition) on page 63, also mentions that widows are
entitled to support from the estate.

All these authorities quoted postulate that although the heir
becomes the owner of the property left by the deceased, he
cannot dispossess the widow of the right to be supported out
of that property. In other words he must keep the property
intact and may only dispose of so much to enable him to meet
his obligations of support of the widow and child.

The property left by deceased in this case would appear to be
sufficient for the widow to support herself out of the fruits. She
may not dispose of the property without the consent of the heir.

I wish to reiterate that this case would appear to be a suitable
one to be brought fo the notice of the Minister with a view
to consideration being given in terms of section 2 (d) III of the
regulations published under Government Notice No. 1664 of
1929, as amended.

In my opinion the appeal should be allowed with costs and
the Native Commissioner’s judgment altered to read: —

“ Claims dismissed with costs.”

Balk (Permanent Member):

The pleadings and judgment in the Court a quo and the grounds
of appeal are set out in the learned President’s judgment.

To my mind the first and second grounds of appeal are not
well founded, the first because Attorney Swales sued in a repre-
sentative capacity, viz. as administrator of the estate of the late
Amos Duma, a Native, which means that the Native estate and
not Attorney Swales is the actual plaintiff, see Mokhesi, N.O. v.
Demas, 1951 (2), S.A., 502 (T.P.D.); and the second because
although Josiah Duma is the heir to the estate of the defendant’s
late husband and as such has an interest in the present action
inimical to that of the defendant, he is her guardian according
to Native Law and she did not object to being assisted by him
and, in any event, she does not appear to have suffered prejudice
thereby.

276

The evidence for the plaintiff does not cover all the items
claimed by him so that the judgment of the Court a quo “ For
plaintiff as prayed ” is defective to that extent. Apart therefrom
it seems to me that the testimony of the defendant and her
witnesses, particularising how she acquired as her own property
the cottage, presently leased by her to others, has not been con-
troverted by the bald statement of the only witness for plaintiff
that the cottage in question belonged to the defendant’s late
husband (hereinafter referred to as “ the deceased ”), particularly
as that witness was an interested party being the heir of the
deceased according to Native Law. That being so, and as it is
clear from the certificate of the defendant’s marriage to the
deceased that community of property and of profit and loss were
excluded by virtue of the provisions of section twenty-two (6)
of the Native Administration Act, 1927, the Court a quo should
have found that that cottage was the property of the defendant,
that it therefore did not form part of the deceased’s estate and
that the plaintiff was accordingly not entitled thereto, see ex parte
Minister of Native Affairs in re Molefe v. Molefe, 1946, A.D., 315,
Mvelase v. Mbhele. 1946, N.A.C. (T. & N.), 94, Butelezi v. Tango,
1947, N.A.C. (T. & N.), 98, and Simelane v. Simelane, 1, N.A.C.
(N.E.), 291.

As regards the remaining cottage, i.e. the one occupied by
the defendant and the several items of furniture and effects
in her possession which are claimed by the plaintiff and all of
which, including that cottage, form assets in the deceased’s estate,
I share the view set out in the learned President’s judgment that
the defendant cannot be deprived thereof as she is entitled to be
maintained by that estate, see Simelane’s case {supra) and Qolo
V. Ntshini, 1, N.A.C. (S), 234.

Tn this connection Counsel for appellant contended that the
plaintiff was entitled to obtain delivery from the defendant of
the assets in the deceased’s estate under the certificate issued in
terms of section four of the Regulations for the Administration
and Distribution of Native Estates, published under Government
Notice No. 1664 of 1929, as amended, as that certificate authorised
the plaintiff to collect the assets in question. But the direction
to collect those assets is subject to the defendant’s right to reside
at the deceased’s kraal and to be maintained by his estate; and
here there is no evidence that it was necessary to realise on any
of the assets in the deceased’s estate to pay the debts thereof.
On the contrary it is manifest from the evidence for the plaintiff
that, the heir has already been paid £112. 8s. 2d. out of the
deceased’s estate. It follows that the contention fails.

It is observed from the defendant’s evidence that she sold
certain of the deceased’s clothing for her maintenance. It is not
clear in what circumstances those articles were sold by her as
this aspect was not fully canvassed in the Court a quo so that
the question of whether or not she was justified in doing so must
be left an open one; in this connection it must, however, be
added that in general widows require the consent of the heir for
the disposal of the estate assets, see Qolo’s case (supra).

I also share the learned President’s view that the instant case
appears to be a proper one for the Minister to be approached
with a view to the provisions of sub-regulation 2 (d) of Govern-
ment Notice No. 1664 of 1929, as substituted by Government
Notice No. 939 of 1947 being invoked.

In the result I am also of opinion that the appeal should be
allowed with costs and that the judgment of the Court a quo
should be altered to one dismissing the claims with costs.

Thompson (Member): I agree with the judgments of the

learned President and my brother Balk.

For Appellant: Adv. C. Cowley instructed by Messrs. Cowley
& Cowley.

For Respondent: Adv. S. T. Pretorius instructed by Messrs.
Swales and Francis.

277

NORTH-EASTERN NATIVE APPEAL COURT.

HLOMUKA V. WOSIYANA.

N.A.C. CASE No. 71/52.

Durban: 28th October, 1952. Before Steenkamp, President; Balk

and Thompson, Members of the Court.

LAW OF PROCEDURE.

Practice and Procedure — Notice of Appeal — Requirements —

Native Appeal Court Rule 1 (a) — Counterclaim — Plea to.

Summary: Plaintiff sued defendant for damages sustained in
an assult by defendant on plaintiff. Defendant counter-
claimed for damages sustained by him during the scuffle. No
plea to the counterclaim was recorded or filed.

Defendant noted an appeal on the grounds that Plaintiff
failed to discharge the onus of proof cast upon him, and,
that the judgment was against the weight of evidence.

Held: That one of the objects to be served by a notice of appeal
is to enable the Court of Appeal to know beforehand what
points are to be raised.

Held further: That the notice of appeal shall state whether the
whole or part only of the judgment or order is appealed
against; and if part only then what part, and that the require-
ments of Native Appeal Court Rule 7 (a) are peremptory.

Held further: That in the instant case the defect in the notice
of appeal could not be cured by allowing the insertion of
the words “ whole of ” as the counterclaim was also affected
by the judgment.

Cases referred to:

Smit V. Greylingstad Village Council, 1951 (4), S.A., 608
(T.P.D.).

Kajee v. Electrocol (Pty.), Ltd., 1952 (2), S.A., 167 (N.P.D.).

Statutes, etc. referred to:

Native Appeal Court Rule 7.

Magistrates’ Courts Rule 47 (6).

Appeal from the Court of the Native Commissioner, Durban.

Steenkamp (President):

The late noting of the appeal is condoned.

In the Native Commissioners Court the plaintiff (now res-
pondent) sued the defendant (now appellant) for £3. 7s. being
17s. for the repair of two pairs of shoes and £2. 10s. being in
respect of a pair of spectacles which defendant broke while
assaulting the plaintiff and which amount plaintiff had to pay
for the replacement of those spectacles.

In his plea defendant admitted he is liable to plaintiff for 4s.,
being the repairs of one pair of shoes and £2. 10s. for the
spectacles. He further pleads that the agreed price for repair of
the shoes was 8s. for the two pairs and that he had paid 4s.

Defendant also counterclaimed for payment of £2, being the
cost of a shirt which plaintiff tore during the scuffle.

There was no plea to the counterclaim and this certainly calls
for comment.

The Native Commissioner gave judgment for plaintiff for £3.
7s. and costs on the claim in convention and on the counterclaim
he entered judgment for plaintiff, i.e. for defendant in recon-
vention.

278

An appeal has now been noted to this Court. The ground of
appeal is that the plaintiff failed to discharge the onus of proof
cast upon him, and the judgment was against the weight of
evidence

The ground of appeal leaves much to be desired and in my
opinion both this Court and the respondent are entitled to know
beforehand what onus is referred to. Apart from this the notice of
appeal does not state whether the whole or part of the judgment
is appealed against. All that is stated in the notice is; —

“ Defendant hereby notes an appeal against the judgment
of the learned Native Commissioner.”

Where appellant uses the words that plaintiff failed to dis-
charge the onus of proof cast upon him, these can only mean
the onus on the claim in convention as surely the onus to prove
that plaintiff tore defendant’s shirt, which is the basis of the
counterclaim, must fall on the defendant, i.e. plaintiff in recon-
vention.

In the case of Smit v. Greylingstad Village Council, 1951 (4),
S.A., 608 (T.P.D.), Dowling (J), in dealing with a notice of appeal
is reported to have stated there were four objects to be served
by a notice of appeal; one of these is to enable the Judges
(meaning the Court of Appeal), who are to decide the appeal, to
know beforehand what points are to be raised.

In that case the main point to be decided was whether the
requirements of rule 47 (6) of the Magistrates’ Courts Act had
been complied with. Now rule 47 (6) of the Magistrates’ Courts
Act reads differently from Rule 7 of the Native Appeal Courts
Rules in as much as paragraph (b) of the last-mentioned rule pro-
vides that the notice of appeal should state the grounds of appeal
clearly and specifically whereas in Magistrates’ Courts Rule 47 (6)
II the words “ specifying the findings of fact or rulings of law
appealed against” are used.

Rule 7 (a) of the Native Appeal Court Rules and rule 47 (6) I
of the Magistrates’ Courts Rules are worded exactly the same,
viz. that the notice of appeal shall state whether the whole or
part only of the judgment or order is appealed against and if part
only then what part.

It follows that the remarks made in Smit v. Greylingstad Vil-
lage Council (supra) apply in the instand case, and this Court is
entitled to know beforehand whether the whole or part only
of the judgment is appealed against and if part only, then what
part. There is also the case of Kajee v. Electrocol (Pty.), Ltd.,
1952 (2), S.A., 167 (N.P.D.), in which De Wet (J) after referring
to other decided cases, held that rule 47 (6) I of the Magistrates’
Courts Rules is peremptory. The Court in that case, however,
granted leave to amend the notice of appeal by the insertion of
the words “whole of” meaning that an appeal is noted against
the whole of the judgment.

In the instant case such an amendment, which was applied for
by counsel for appellant, would not cure the defect since the
grounds of appeal, as pointed out above, indicate that the only
part of the judgment appealed against, is that on the claim in con-
vention.

In my view therefore the notice of appeal not having been
drawn up in accordance with the rules, the appeal should be
struck off the roll with costs.

Balk (Permanent Member): I concur.

Thompson (Member): I concur.

For Appellant: Mr. C. Cornish of Messrs. C. Cornish & Co.

Respondent in Person.

NORTH-EASTERN NATIVE APPEAL COURT.

MAHAYE V. LUTULl.

N.A.C. CASE No. 64/52.

Durban: 29th October, 1952. Before Steenkamp, President; Balk
and Thompson, Members of the Court.

(1) LAW OF PROCEDURE. (2) ZULU CUSTOM.

Appeal — Late noting — Application for condonation of — Reasons

for late noting not acceptable, hut merits of case also to be

considered.

Native Customary Union — Dissolution of — factors to be con-
sidered in determining number of lobolo cattle refundable.

Summary: Plaintiff sued his wife for divorce and cited the guar-
dian of his wife as a party. The divorce was granted and
the Native Commissioner made an order for the return of
fourteen head of cattle to plaintiff. Against this order an
appeal was noted.

Held: That as the reasons for late noting of the appeal are not
acceptable, the Appeal Court would ordinarily not entertain
an application for condonation of the late noting.

Held further: That as there are certain factors in the case which
indicate that the appellant has a reasonable prospect of success
on appeal, condonation should be granted.

Held further: That the following considerations should guide
the Court in arriving at a decision as to the number of cattle
to be returned on a dissolution of the customary union; —

(i) The number of cattle delivered;

(ii) the number of children born to the union;

(iii) the blame attachable to each party;

(iv) whether the woman is likely to enter into another cus-
tomary union and. if so, the number of cattle which
her father or guardian is likely to obtain as lobolo for
her; and

(v) the period the parties have lived together.

Held further: That if the Native Commissioner had taken into
consideration all the relevant factors he would not have
ordered the return of so large a number as fourteen.

Appeal from the Court of the Native Commissioner, Durban.

Steenkamp (President);

Judgment in this case was given on the 28th February, 1952.
On the 1st March, 1952. appellant (who was defendant No. 2
in the Court below) applied through his attorney for a written
judgment. The written judgment was filed on the 17th April,
1952, but appellant did not note his appeal till the 8th July, 1952.
Application is now made for the condonation of the late noting
of the appeal.

The reasons for late noting briefly would appear to be that the
appellant did not keep in touch with his attorney who, after he
had received the written reasons for judgment, had to communi-
cate with appellant before an appeal could be noted. A letter
was written to the appellant, but it was returned to the attorney
by the post office. The reasons for the late noting of appeal
are not acceptable and this Court would not normally entertain
the application, but as there are certain factors in the case which
indicate that the appellant has a reasonable prospect of success
on appeal, the late noting of the appeal is condoned.

280

The plaintiff (now the respondent) sued his wife, duly assisted,
for a divorce on the grounds of adultery. Defendant No. 2, that
is the guardian of defendant No. 1, was cited as a party. The
Native Commissioner granted the divorce and also ordered the
second defendant, that is the appellant, to return fourteen head
of cattle to the plaintiff.

The woman has not noted an appeal against the divorce, but
the second defendant (now appellant) has appealed against the
judgment in so far as that judgment affects the number of cattle
returnable. The grounds of appeal are: —

1. The judgment is against the weight of evidence and against

law.

2. The learned Native Commissioner failed to take into con-

sideration all relevant facts in determining the number of
cattle to be refunded to respondent by appellant (second
defendant in Court below).

3. The learned Native Commissioner erred in holding that

because there was one child there would be a probability
of an early marriage, especially as the plaintiff had been
living with the first defendant for ten years.

4. The learned Native Commissioner failed to take into con-

sideration the time during which the parties had been
married as one of the determining factors for the return
of the cattle, and judgment should have been for not more
than eight head of cattle.

It is common cause that the parties were married during the
year 1942 and that fifteen head of cattle were paid as lobolo
plus the ngqutu beast. The parties lived together for about seven
years and during that time one child was born of this union. The
Native Commissioner in fixing the number of cattle to be returned
only took into consideration that there was one child and there
was every probability of the early remarriage of the woman.

According to Stafford’s Principles of Native Law and the Natal
Code (second edition at pages 140/141), the following considera-
tions should guide the Court in arriving at a decision as to the
number of cattle to be returned on a dissolution of the customary
union: —

1 . The number of cattle delivered.

2. Number of children born to the union.

3. The blame attachable to each party.

4. Whether the woman is likely to enter into another customary

union (age being an important factor) and, if so, the
number of cattle which her father or guardian is likely to
obtain for her.

5. The period the parties have lived together.

Various cases are quoted by Stafford as authority for these five
considerations.

It is manifest from the Native Commissioner’s reasons for
judgment that he has not considered the fact that the parties
lived together for seven years nor the probable lobolo that would
be payable for the first defendant on her entering into another
customary union and that he has not made any allowance on
account of these factors as he should have done in fixing the
number of cattle returnable to the plaintiff.

In the notice of appeal it is suggested that the Native Commis-
sioner should have ordered the return of only eight head of cattle,
but in my opinion this number is not sufficient and it seems to me
that if the Native Commissioner had taken into consideration all
the relevant factors he would not have ordered the return of so
large a number as fourteen.

To my mind if all the relevant circumstances are taken into
account, the return of twelve head of cattle would be reasonable
in the instant case, and I am therefore of the opinion that the
appeal should be allowed with costs and that paragraph 4 of the
Native Commissioner’s judgment should be altered to read:

281

“ Second defendant to return twelve head of cattle to the
plaintifi or pay him their value at the rate of £5 per head.”

Balk (Permanent Member): I concur.

Thompson (Member): I concur.

For Appellant: Adv. R. W. Cowley (instructed by Messrs.
Cowley & Cowley).

For Respondent: Mr. G. S. Naidu.

NORTH-EASTERN NATIVE APPEAL COURT.

NGLJBANE v. NGUBANE.

N.A.C. CASE No. 75/52.

Durban: 29th October, 1952. Before Steenkamp, President; Balk
and Pretorius, Members of the Court.

LAW OF PROCEDURE.

Practice and Procedure — Native Commissioner’s Court — Bill of
Costs between party and party — Travelling expenses of Attorney
from place where he practises to seat of Court if no local
Attorneys available at latter centre included in composite fee
for attending Court under Table “ A".

Summary: The appellant claimed in a Bill of Costs as between
party and party an amount of £2. 6s. being travelling expenses
incurred by his attorney for the journey between the town
where he practises and the town where the case was being
tried and where no local attorney was available.

The Clerk of the Court disallowed the item and after the
Native Commissioner, on review, had confirmed the Clerk
of the Court’s action in disallowing it, the appellant noted
an appeal to the Native Appeal Court.

Held: That on a proper construction of rule 75 (5) of Native
Commissioners’ Courts Rules the composite fee prescribed in
Table “ A ” for an attorney’s appearance is intended to
include his travelling expenses, if any, and that no relaxation
of the rule is justified.

Cases referred to:

Zulu V. Zulu, 1934, N.A.C. (T. & N.), 48.

Maguili & Ors. v. Readman, 1913, S.R. 123.

Wynberg Municipality v. Bersein & An. 1920, C.P.D., 100.
Statutes, etc. referred to:

Sub-rule 75 (5) and Table “ A ” of the Rules for Native
Commissioners’ Courts published under Government Notice
No. 2886 of 1951.

Sub-rules 49 (5) and (8) of the Magistrates’ Courts Rules.
Appeal from the Court of the Native Commissioner, Mapumulo.
Steenkamp (President):

The appellant obtained a judgment in his favour in the Native
Commissioner’s Court, where he was the defendant, and when he
submitted his Bill of Costs to be taxed as between party and
party, the Clerk of the Court disallowed £2. 6s., being travelling
expenses incurred by appellant’s attorney for the journey from
Kranskop to Mapumulo where the case was being tried and
where no local attorney was available.

Appellant requested the Native Commissioner to review the Bill
of Costs and in his application for review he referred to rule
75 (5) of the Native Commissioners’ Courts Rules and submitted

282

that the words “ in addition to necessary expenses ” convey the
meaning that an attorney may in a Bill of Costs claim his travelling
expenses from the place where he practises to the seat of the
Court if no local attorneys are available at the latter centre.

The Native Commissioner confirmed the action of the Clerk of
the Court in disallowing the item of £2. 6s. and the appellant
has now appealed to the Court on the following grounds: —

“ 1. That the charge for Attorney’s travelling expenses is in
accordance with rule 75 (5) of the rules in Native Com-
missioners’ Courts published under Government Notice
No. 2886/1951.

2. That the learned Native Commissioner erred in holding
that the charge is not a “ necessary expense ” in addition
to the tariff of fees laid down in Table A of the Rules.
3. That the learned Native Commissioner erred in holding
that if the legislature intended that a travelling allowance
should be paid to attorneys it should have appeared as
an item in Table A, overlooking the fact that Table A
applies only to fees, and that rule 75 (5) specially
provides for necessary expenses to be taken by practi-
tioners in addition to the fees under Table A.”

It becomes necessary to quote in full rule 75 (5) of the Native
Commissioners’ Courts Rules published under Government Notice
No. 2886, dated 9th November, 1951 {Government Gazette Extra-
ordinary No. 4726, dated 9th November, 1951).

This rule reads as follows: —

“The scale of fees to be taken by practitioners as between
party and party shall be that set out in Table A of the second
annexure to these rules in addition to necessary expenses.”

The wording of this sub-rule and of rule 49 (5) of the Magis-
trates’ Courts Rules is the same in so far as is relevant here, but
there is a sub-rule (8) in the Magistrates’ Courts Rule 49 which
is to the effect that an attorney may under circumstances similar
to those in the instant case claim reasonable travelling expenses.
It is rather significant that such a sub-rule was omitted from the
Native Commissioners’ Courts Rules and this Court must attach
some importance to that omission.

The mere fact that in the Magistrates’ Courts Rules it was
deemed expedient to make special provision for attorneys’ travel-
ling expenses indicates that the words “ in addition to necessary
expenses ” do not include such travelling expenses.

The Clerk of the Court in disallowing the item of £2. 6s.
referred to the case of Zulu v. Zulu, 1934, N.A.C. (T. & N.),
48, which was decided under the old rules which did not contain
the words “ in addition to necessary expenses ” and therefore the
ruling in that case has no application in the present appeal.

Under the existing rules a tariff appears as Table A to the
second annexure and in my view the words “ in

addition to necessary expenses ” in rule 75 (5) obviously
refer to items not covered by Table “ A ”, see page 422 of Jones
and Buckles Civil Practice of Magistrates’ Courts (5th Edition).
That table sets out the fees recoverable by attorneys for attend-
ing Court — without differentiating in regard to distances which
attorneys may have to travel to reach Court, so that those fees
are obviously intended to include travelling expenses. This view
gains support from the significant fact already referred to, viz. that
there is no corresponding rule in the Native Commissioners’ Courts
Rules to rule 49 (8) of the Magistrates’ Courts Rules which deals
with travelling and other allowances to attorneys in certain cir-
cumstances.

I have given due consideration to the judgments in Wynberg
Municipality v. Bersin & An., 1920, C.P.D., 400 and Maguili
Ors. V. Readman, 1913, S.R. 123, quoted by counsel for appellant
in the course of his argument.

283

The first-mentioned case has no application in the present
instance as in that case a claim was made for qualifying expenses
incurred prior to the hearing of the case, i.e., to enable experts to
give evidence which they could only give after experiments had
been carried out.

As regards the last-mentioned case it is my opinion, for the
reasons given above, that on a proper construction of the rule
in question the composite fee prescribed in Table “ A ” for an
attorney’s appearance is intended to include also his travelling
expenses, if any, and that no relaxation of that rule is justified
since one of the objects in establishing Native Commissioners’
Courts and in prescribing their procedure was economy in
litigation, see Zulu’s case (supra) at page 50.

Accordingly 1 am of opinion that the appeal should be dis-
missed with costs.

Balk (Permanent Member) : I concur.

Pretorius (Member): 1 concur.

For Appellant: Adv. F. P. Behrman (i/b L. T. Buss).

Respondent in Person.

SOUTHERN NATIVE APPEAL COURT.

GWATYU V. GWATYU.

N.A.C. CASE No. 39 of 1952.

Kino William's Town: 24th November, 1952: Before Sleigh,
President; Pike and Schaffer, Members.

COMMON LAW.

Native land enquiry — Evidence — Legitimacy, presumption of —
Onus of proof — Evidence of general reputation admissible
having regard to the circumstances of the case.

Enquiry held in terms of section 3 of Government Notice
No. 1664 of 1929 to determine the heir of the late “G ” who had
four wives of whom “ N ”, the mother of respondent’s father
“ M ”, was the great wife, and the mother of appellant the qadi
to the great house. Appellant contended in the court below
that “ M ” (respondent’s father) was in fact not “ G’s ” son as
when the latter married “ N ”, “ M ” was already born and was
the son of one “ X ”.

The Assistant Native Commissioner held that there was a
presumption of law in favour of “ M’s ” legitimacy, that the
onus was on appellant to adduce convincing evidence in rebuttal
of that presumption and that he had failed to do so.

Against this finding an appeal has been lodged inter alia on
the following ground, viz., that the judicial officer erred in
finding that there was a presumption of legitimacy in favour of
“ M ” and that there was an onus on appellant to rebut that
presumption.

Held:

(2) That the presumption pater est quern nuptiae demonstrant
arises only if there is proof that the child was born
after the marriage of his mother to her husband.

(2) That in view of the inference to be drawn from the facts

which are common cause and in the absence of any facts
beyond these, there is no doubt that respondent is the
heir. The onus consequently rests upon the appellant
to prove that “ M ” was illegitimate.

(3) That evidence of general reputation prevailing in a

family and not of mere rumour is in the circumstances
of this case admissible as secondary evidence.

284

Works of Reference:

“ Law of Evidence in South ,\frica ” — 2nd Edition, pp.
174-175; Scoble.

Appeal from the Court of the Native Commissioner, Lady
Frere.

Pike (Member):

This is an enquiry held in terms of sub-section (3) of section 3
of Government Notice No. 1664 of 1929 to determine the heir of
the late Jan Gwatyu.

This matter came before this Court on 19th November, 1951,
when the finding in favour of the present appellant was set aside
because the present respondent had not been given the opportunity
of examining appellant’s witnesses who testified to the fact that
Jan’s estate was administered by appellant, or of adducing evidence
in rebuttal. At the present hearing of the appeal appellant’s
Counsel urged that the case was remitted solely for that purpose.
This is, however, not correct. The Court emphasised the lack of
opportunity afforded respondent of adducing evidence relating
to the administration of the estate, but returned the record to
the Court below “ for such further evidence as either party may
wish to adduce ”.

The following facts are common cause; —

(i) The late Jan Gwatyu had four wives, of whom the mother
of respondent’s father was the great wife and the mother
of appellant the qadi to the great house.

(ii) Respondent’s father, Mangaliso, grew up at the late Jan
Gwatyu’s kraal, was circumcised there and had at all times
borne the name of Gwatyu, and

(iii) Mangaliso is deceased and respondent is his eldest son.

The appellant contended in the Court below that Mangaliso,

although the son of Nolentyi (the great wife), was in fact not
the son of Jan Gwatyu in that he was already born to Nolentyi
before Jan married her and was the son of one Xalanto. It
is admitted that Mangaliso was the only son born to Nolentyi
and that, if he was illegitimate, the appellant would be the heir.

The Assistant Native Commissioner held that there was a
presumption of law in favour of Mangaliso’s legitimacy, that the
onus was on the appellant to adduce convincing evidence in
rebuttal of that presumption and that he had failed to do so.
Respondent was therefore declared the heir.

Against that finding an appeal has been lodged on the following
grounds : —

(1) That the judgment is against the weight of evidence and is

not supported thereby.

(2) That the presiding judicial officer erred in finding that there

was a presumption of legitimacy in favour of Mangaliso
and that there was an onus on appellant to rebut that
presumption.

Alternatively and only in the event of the above Honourable
Court holding that there was such presumption of legitimacy,
the presiding judicial officer erred in finding that the appellant
had failed to discharge the onus resting on him.

It will be more convenient to deal with these grounds of appeal
in reverse order.

Where a woman who is legally married gives birth to a child
a presumption of law arises that her husband is the father of the
child. Before this presumption can arise there must be proof
that the child was born after the marriage of his mother to her
husband. In the present case respondent has produced no such
proof, due, no doubt, to the fact that Jan Gwatyu and his wife

285

Nolentyi were married so long ago that he can find no living
person who can testify as to the date of the marriage and the date
of birth of Mangaliso. The Assistant Native Commissioner,
therefore, erred in finding that a presumption of law arose m
regard to Mangaliso’s legitimacy. However, the facts which
are common cause raise an inference that Mangaliso was the son
of Jan Gwatyu.

I now propose to deal with the first ground of appeal. To do
so it is essential to decide upon whom the onus lies. In view
of the inference to be drawn from the facts which are common
cause and, in the absence of evidence of any facts beyond those,
there can be no doubt that respondent must be declared the
heir. The onus consequently rests upon the appellant to prove
that Mangaliso was illegitimate and, if he has failed to discharge
that onus, the finding in favour of the respondent is correct.

The only witness who can testify in regard to Mangaliso’s
illegitimacy is one Ralisa. He states that Nolentyi had no son
by Jan, but that she gave birth to Mangaliso 6-8 years before her
marriage to Jan and that his father was one Xalanto,. This witness
gives no evidence to indicate that he testifies to facts within his
knowledge and was not repeating rumour as so many of the
other witnesses did. The respondent’s witness Nowayiti Hilana
states that she is older than Ralisa, that she married a nephew
of Jan and that Mangaliso was then as old as her husband. The
witness Archibald Mzazi, aged 72 years, who gave evidence in
favour of the appellant, states that Ralisa is much older than he
is and that Mangaliso, had he lived, would also have been much
older than he is. Jan Sali. ex-headman of the location in which
the parties reside, states that Ralisa is not older than he is and
that he and Mangaliso were at school together. From these facts
it can be deduced that Mangaliso and Ralisa were eontemporaries
Viewed in the light most favourable to the appellant, Ralisa
could thus have been no more than 6-8 years old when Nolentyi
married Jan. These factors throw considerable doubt on the very
important point as to whether Ralisa was testifying to facts within
his knowledge and it was the duty of appellant to have made
this clear.

The remaining evidence concerning Mangaliso’s legitimacy is
all hearsay. Evidence of reputation is, in the circumstances of
this case, admissible as secondary evidence but it must be of
general reputation proper prevailing in a family and not of mere
rumour.

Archibald Mzazi, a member of the board of the location con-
cerned, testified to the death of Jan Gwatyu in 1919 and states
that after the funeral members of the family, in the presence of
Mangaliso, declared appellant, then a very young boy, to be
Jan’s heir. He states, further, that Jan had never told him that
Mangaliso was not his son and that this was the first occasion
on which he heard that Mangaliso was illegitimate. In addition,
he stated that appellant was placed in the care of Mangaliso
and Rungutwana who is also now deceased. Under cross-
examination he admits that he left the location in 1917 and
remained in Johannesburg until 1928 but says he was at home
on leave in 1919 when Jan died. He states most emphatically
that Tamanini Penxa was not present at the funeral of Jan but
he cannot remember whether any member of the Yana family
was there. He first became actively interested in this dispute in
1950. He states he was present at the enquiry held by his
brother P. Mzazi (another board member) in 1937 in connection
with the land of the late Jan Gwatyu and that at this meeting
it was stated that Mangaliso was illegitimate. P. Mzazi in his
evidence states that in 1937, the respondent claimed to be the
heir to Jan’s land and desired transfer into his name. He called
the members of the family (including appellant and his mother)
together. He states that nobody disputed that respondent was
Jan’s heir, that the question of his illegitimacy was not discussed

286

and that there was every opportunity for appellant to have done
sa had he so wished. His decision was that respondent could not
obtain transfer while one of Jan’s widows , Notawule was still
living. The Assistant Native Commissioner believed this evidence
in preference to that of A. Mzazi.

Dumba Gwatyu, who gave evidence on behalf of appellant,
says that Jan died before 1918 when A. Mzazi on his own
showing was in Johannesburg. This witness also states that
Jan told him “ that Nolentyi had a son by another man ”. This
testimony is inadmissible since it is a repetition of a statement
made by a particular individual and is not testimony of general
repute (Scoble, 2nd Ed. pp. 174-175).

The remaining evidence on behalf of the appellant consist of
mere rumour and not of general reputation.

In so far as the control of Jan’s estate is concerned there is a
confict of evidence between the two claimants. Respondent and
his witnesses say Mangaliso took charge of it whereas appellant
and his witnesses state that Mangaliso had nothing to do with
its administration and received no benefit from it. It must be
remembered, however, that A. Mzazi states the young heir was
placed in the joint care of Mangaliso and another man. If that
were so, Mangaliso must have exercised a considerable measure
of control over the assets in the estate.

In rebuttal of the evidence of repute by the appellant, respon-
dent has the evidence of Tamanini Penxa who married a daughter
of the late Jan Gwatyu. He says that his wife was allotted to
Mangaliso by her father and that he paid dowry for her to
Mangaliso who then had his own kraal, that the negotiations
all took place at that kraal and that his wife was handed over
to him from that kraal.

It is conceded by both Counsel that the late Jan Gwatyu was
a man of substance. I find myself unable to accept as a fact
that Jan would have allotted a daughter to a stranger (which
would have been the position had Mangaliso been the son of
Xalanto born to Nolentyi before her marriage). I find it
difficult to believe that Jan would have married as his first wife
a woman who was a dikazi. It is also highly improbable that
the male members of the family would have placed the minor heir
in the care of a stranger, viz., Mangaliso as A. Mzazi would
have the Court believe. Furthermore, the Assistant Native Com-
missioner believed the evidence of P. Mzazi and rejected that
of A. Mzazi and in my opinion he was ju.stified in doing so.
Having stated why I am unable to accept the evidence of Ralisa,
I come to the conclusion that the appellant has failed to dis-
charge the onus of proving that Mangaliso was illegitimate and
the appeal is consequently dismissed with costs.

Sleigh, President and Schaffer, Member, concurred.

For Appellant: Mr. Tsotsi, Lady Frere.

For Respondent: Mr. Kelly. Lady Frere.

NORTH-EASTERN NATIVE APPEAL COURT.

NHLANHLA v. MOKWENO.

N.A.C. CASE No. 86/52.

Pretoria: 4th December, 1952. Before Stenkamp, President;
Balk and Garcia, Members.

287

COMMON LAW.

Locus standi in judicio — Native woman — Widow of customary
union-capacity of parties dictated by system of law to be
applied.

Sale of land— Unknown to Native law in Transvaal.

Summary: Plaintiff, the widow of a Native customary union,
sued for an order compelling the defendant to transfer to
her all his rights to a certain plot of ground. She alleged
that she had entered into an oral agreement with defendant
whereby the latter would purchase on her behalf a certain
plot of ground with money provided by her.

The Native Commissioner, after the close of plaintiff’s
case, and on the application of the defendant’s attorney,

decreed absolution.

Held: That as the transaction, consisting as it does of an agree-
ment between the parties for the purchase of immovable
property, is one unknown to Native Law in the Transvaal
Province, the issues in the instant action fall to be deter-
minded according to Common Law.

Held further: That the capacity of the plaintiff to bring the
instant action falls to be determined according to common law
since here the system of law applied dictates the capacity of
the parties.

Cases referred to:

Caro V. Tulley, 1910, T.P.D., 1026.

Mattheus v. Stratford & Ano, 1946, T.P.D., 498.

Ex Parte Minister of Native Affairs in re Yako v. Beyi, 1948
(1), S.A., 388, A.D.

Muguboya v. Mutato, 1929, N.A.C. (T. & N.), 73.

Qolo V. Ntshini, 1 N.A.C. (S), 234.

Nzimande v. Phungula, 1 N.A.C. (N.E.), 386.

Ledwaba v. Ledwaba, 1 N.A.C. (N.E.), 398.

Statutes, etc. referred to:

Section 30 of Proclamation No. 8 of 1902 (Tvl.).

Sections 2 (e), 3 (1) and 4 of Government Notice No.
1664/29.

Sections eleven (1) and (3) of Act No. 38 of 1927.

Appeal from the Court of the Native Commissioner, Premier
Mine.

For Appellant: Adv. Curlewis (i/b MacRobert, de Villiers &
Hitge).

For Respondent: Adv. Badenhorst (i/b W. L. van Eck).

Balk (Permanent Member) :

This is an appeal from the judgment of a Native Commissioner’s
Court decreeing absolution from the instance with costs in an
action in which the plaintiff (present appellant), who is a widow,
sued for an order compelling the defendant (now respondent) to
transfer to her all his rights to a certain plot of land (hereinafter
referred to as “ the plot

The plaintiff in her particulars of claim averred that she had
entered into an oral agreement with the defendant in terms of
which he had undertaken to purchase the plot for her as her
agent and she to give him £120 wherewith to do so, that she
had given him that sum, that he had wrongfully, unlawfully and
in breach of that agreement purchased the plot for himself and
denied the plaintiff’s rights thereto.

The plaintiff averred alternatively that she had concluded an
oral agreement with the defendant in terms of which he had
undertaken to purchase the plot and she to give him £120 to do

288

so on the understanding that immediately he had purchased it
he would transfer all his rights thereto to her, that she had given
him that sum, that he had purchased the plot therewith and
that he wrongfully, unlawfully and in breach of the said agree-
ment denied the plaintiff’s rights thereto.

The plaintiff also made a claim for “ alternative relief ”, i.e.
a claim known as the “ salutary clause ”, and added an alterna-
tive claim for the refund to her of the £120, averring that notwith-
standing demand the defendant had wrongfully and unlawfully
refused to perform the said mandate an undertaking by him,
that she had lawfully cancelled that mandate; alternatively, that
he had wrongfully and unlawfully repudiated it, that demand had
been made to the defendant to refund the said £120 to the plain-
tiff and that he had refused to do so.

The decree of absolution in question was granted by the Court
a quo on the application of the defendant’s attorney at the close
of the plaintiff’s case and after she had been recalled for further
cross-examination.

The defendant’s attorney based that application on the ground
that the plaintiff had no locus standi in judicio as the action
should have been brought by her elder son, a minor, duly
assisted by his guardian.

The Court a quo granted that application as in its opinion the
plaintiff had no locus standi in judicio in that according to her
evidence she used the assets of her late husband’s estate to raise
the money to purchase the plot and, seeing that estate fell
to be administered according to Native Law and Custom, the
correct person to sue was the heir thereto i.e. the plaintiff’s elder
son. Those reasons are endorsed in the body of the record
immediately preceding the entry of the decree in question. In
his subsequent reasons for judgment the Assistant Native Com-
missioner a quo states ;

“ The plaintiff in this action is a Native woman subject to
Native Law and Custom. She was married by Native Law
and Custom and her late husband’s estate falls to be dealt by
Native Law and Custom as her late husband left no will.
She thus has no locus standi to bring an action in her own
name, but must be assisted by her guardian. She used the
assets in the estate wrongfully, by not proceeding according
to Native Law and Custom. In view of the above the
defendant’s request for absolution was granted.”

and later

“ The Notice of Appeal (paragraph 2) states that the Court
erred in holding that there were any question of customs
followed by Natives relevant to the issues raised in the action
and paragraph 4 in holding that the plaintiff had no locus
standi in judicio. The whole question centres round the
point of locus standi. In the opinion of the Court the
plaintiff is subject to Native Law and Custom and thus has
no locus standi. Had the plaintiff follows Native Law and
Custom, the issues raised by the summons, could not have
occurred as she would not have been in a position to use the
assets of the estate.

As the woman was in the opinion of the Court subject to
Native Law and Custom the discretion to apply native Law
and Custom (paragraph 3 of the Notice of Appeal) is derived
from section eleven (1) of Act No. 38 of 1927.”

The grounds of appeal are “ that the said judgment is against
the evidence and the weight of the evidence and bad in law in
that the Assistant Native Commissioner erred —

(1) in holding that any of the ‘facts found to be proved’ set

out in his reasons for judgment were in any way relevant

to the issues between the parties to the present dispute;

(2) in holding that there were any questions of customs followed

by Natives relevant to the issues raised in the action which

required to be decided or investigated by him;

289

(3) in holding that he had any discretion to apply Native Law

and Custom in the circumstances of this case.

(4) in holding that the plaintiff had no locus standi in jiidicio.

The Assistant Native Commissioner should have —

(i) decided the action and the various issues relating thereto
under the ordinary law of the country;

(ii) held that the plaintiff had locus staiuii in judicio;

(iii) dismissed the application for absolution from the instance
with costs.”

It is clear from the summons that the plaintiff brought the action
in her personal capacity. It is equally clear from the summons
and to my mind also from the evidence that the plaintiff’s case
is that after the death of her husband she entered into a verbal
agreement with the defendant for the purchase by him of the plot
from a third person on her behalf in her personal capacity and
not for her late husband’s estate or the heir thereto, and that the
defendant purchased the plot with the £120 she gave him for that
purpose.

It is true that the plaintiff in the course of her further cross-
examination stated “ It is the custom that the eldest son should
get everything. In this case my son of 12. This son of mine
would be entitled to transfer of the plot. I am claiming this
plot on behalf of my son so that I can bring him up there
But it seems to me that the probability is that all the plaintiff
intended to convey thereby was that in her opinion her elder son
would ultimately be entitled to receive transfer of the plot from
her, viz. after he had attained his majority, seeing that she had
realised on assets in her late husband’s estate to raise the £120
wherewith to purchase the plot and her elder son was the heir to
that estate. This view gains support from the fact that it is in
keeping with ingrained Native custom for a parent to purchase
on his own behalf and not on behalf of a minor child property
required for family use notwithstanding that such child’s earnings
or other of his means are utilized for that purpose. In view
thereof and as there is no evidence that the plaintiff communi-
cated to the defendant any intention of acquiring the plot on
behalf of her elder son, it cannot, in my opinion, be properly
inferred from the plaintiff’s evidence quoted above, that she
arranged with the defendant to acquire the plot on her elder son’s
behalf. To my mind therefore that evidence does not detract
from the testimony of the plaintiff and that of her witnesses that
her agreement with the defendant was that he was to purchase
the plot for her i.e. on her behalf in her personal capacity. Here
it may conveniently be mentioned that the plaintiff could not
have acted as the agent of her late husband’s estate in her
alleged agreement with the defendant since she had no authority
to represent that estate and she must therefore in so far as this
aspect is concerned be taken to have entered into that agreement
on her own behalf. That this is the legal position is manifest
from the following factors: —

(1) The plaintiff’s evidence that the union between her and her
late husband was a customary one, that he died intestate,
that his estate was not reported and that his heir is their
elder son, a minor.

(2) That in the light of that evidence the said estate fell to be

administered and the property therein distributed according
to Native Law in terms of sections 2 (e), 3 (1) and 4 of the
regulations for the administration and distribution of Native
estates, published under Government Notice No. 1664 of
1929, as amended.

(3) That as the said estate was not reported no one could have

been appointed to represent it in terms of section 4 of
those regulations, with the result that the guardian, accord-
ing to Native Law, of the minor heir to that estate was the
only person who was enitled to represent it.

(4) That under Native Law the nearest major male kin of the
plaintiff’s late husband and not the plaintiff, is the guardian
of the minor heir of the said estate.

290

Turning to the question as to whether the issues in the instant
case are affected by the plaintiff’s having, as is evident from the
record, without authority realised on certain assets in the estate
of her late husband to raise the £120 wherewith to purchase the
plot, it seems to me that this question falls to be answered in the
negative as that estate did not become the owner of that £120
and the unauthorised disposal by the plaintiff of certain assets
therein, viz. maize, corn and cattle, is a matter entirely between
her and the guardian, according to Native Law, of the minor heir
to the said estate or any representative that may be appointed in
terms of section 4 of the above-mentioned regulations or between
such guardian or representative and the persons who acquired
the assets sold by the plaintiff to raise the £120, see Qolo v.
Ntshini, 1 N.A.C. (S), 234.

The transaction in question,consisting as it does of an agreement
between the parties for the purchase of immovable property by the
defendant on behalf of the plaintiff, is one unknown to Native
Law in the Province concerned (Transvaal), being pecuUar to
Common Law, and the defendant appears to have no good
defence under Native Law. The issues in the instant case there-
fore fall to a determined according to Common Law, see Ex
parte Minister of Native Affairs in re Yako v. Beyi, 1948 (1),
S.A., 388 (A.D.), at pages 397, 399, 400 and 401 and Muguboya
V. Mulatto, 1929, N.A.C. (T & N.), 73, at pages lb. 77 and 78.
It follows that the capacity of the plaintiff to bring the instant
action also falls to be determined according to Common Law
since here the system of law applied dictates the capacity of
the parties, see Nzimande v. Phungula, 1 N.A.C. (N.E.), 386, at
page 387 and Ledwaba v. Ledwaba, 1 N.A.C. (N.E.), 398, at
page 400. Here it may be added that, as in those cases so in
the instant case, the exceptions to the rule that the system of
law applied dictates the capacity of the parties have no appli-
cation. The exceptions to which I refer arise from the
use of the words “ subject to any statutory provision affecting
any such capacity of a Native ” in sub-section (3) of section
eleven of the Native Administration Act, 1927, as amended,
and from proviso (b) to that sub-section, the lastmentioned
exception is dealt with at pages 402 and 403 of the report of
Yako’s case, supra. These exceptions have no application in
the cases concerned since no statutory provision of the nature
in question is involved and none of the parties concerned is a
Native woman who is a partner in a customary union and who
is living with her husband, the plaintiff in the instant case being
a widow.

As under Common Law a widow is a major and does thus not
need to be assisted to bring a civil action and as for the reasons
given above it seems to me that the plaintiff in the instant action
entered into the alleged agreement with the defendant on her own
behalf and not on behalf of her late husband’s estate or the
minor heir thereto, she has locus standi in judicio.

Counsel for respondent took the point that as the alleged
agreement between the parties was an oral one and as there is no
evidence that the plaintiff authorised the defendant in writing to
sign a contract for the purchase of the plot, that oral agreement
was void in view of the provisions of section thirty of the Trans-
vaal Transfer Duty Proclamation, 1902, that “no contract of sale
of fixed property shall be of any force or effect unless it be in
writing and signed by the parties thereto or by their agents duly
authorised in writing ’’. That this point was taken in the Court
a quo appears to be borne out by a note, in the record, which
reads “ Mr. Ferreira (defendant’s attorney) submits that if Com-
mon Law applies (page 349 Wille and Millin, 12th Edition) no
proper contract of agency was constituted which should have been
by way of power of attorney. There was no legal contract. No
case for defendant to meet.”

Counsel for appellant contended that the section in question
had no application in the instant case as the plaintiff was suing
the defendant under an agreement of agency and not the seller
of the plot under an agreement of sale. But even assuming that

291

this contention is well founded, it seems to me that the plaintiff
is not under the alleged agreement of agency entitled to claim
from the defendant any greater rights than he has received there-
under, except of course for damages which are not in issue in the
instant action, and as, to my mind, neither the pleadings nor the
evidence establish that the defendant entered into a written con-
tract with the seller of the plot in respect of its purchase or that
the defendant received transfer thereof, 1 do not see how the
plaintiff can at this stage succeed in her claim for specific
performance.

But this does not conclude the matter as there still remains the
plaintiff’s alternative claim for the refund to her of the £120.

Counsel for respondent submitted that this claim had been
abandoned, relying on a note in the record as follows: —

“ Mr. Human (plaintiff’s attorney) addresses Court. Will
not proceed with first alternative claim. Will ask for an
order to direct defendant to transfer all his right and title to
the property of the plaintiff. Alternative facts to stand.”

Counsel for appellant contended that the alternative claim
mentioned in that note referred to the one based on the plaintiff’s
first alternative averment, i.e. the averment set out in third para-
graph of this judgment.

The correctness of the note in question has not been challenged
so that it must be accepted as setting out the true position.

It seems to me that it cannot be determined from that note
with any degree of certainty which alternative claim the plaintiff’s
attorney intimated he was not proceeding with and that it would
therefore not be proper at this stage to hold against the plaintiff
that the alternative claim she did not wish to proceed with was
the one for the refund to her of the £120.

I feel constrained to add that it is a matter for regret that the
Court a quo lent itself to this confusion.

Counsel for respondent further contended that the plaintiff
could not succeed on the last-mentioned claim as she had not ten-
dered possession of the plot to the defendant, relying on Mattheus
V. Stratford and Another, 1946, T.P.D., 498.

But this contention does not appeal to me firstly because the
plaintiff’s address given in the summons in the instant action indi-
cates that she was not residing on the plot and it is not clear
from the evidence that she resided thereon when she instituted
the present proceedings; secondly because Mattheus’ case does
not appear to be an authority for that contention as the only
averment it lays down as being essential in the respect in question
is a declaration that the seller is unwilling to transfer the land
whilst retaining the purchase price paid, and there is such an aver-
ment in the particulars of claim in the instant case; thirdly be-
cause it is manifest from the plaintiff’s evidence that she has
effected improvements on the plot and she is therefore entitled to
a right of retention pending an action by the defendant for pos-
session of the plot, see Mattheus’ case (supra) at page 505. It
should be added that the point in question does not appear to
have been taken in the Court a quo.

In the result I am of opinion that the appeal should be allowed
with costs, that the judgment of the Court a quo should be set
aside and in lieu thereof an entry made in the record that the
application for absolution is refused, and that the case should be
remitted to the Assistant Native Commissioner concerned for trial
to a conclusion.

Steenkamp (President):

In my opinion the Assistant Native Commissioned had erred
in granting an absolution judgment at the close of plaintiff’s case.

I agree with my brother Balk that plaintiff had locus standi in
judicio to bring the action.

292

The defendant at the close of plaintifi’s case applied for an
absolution judgment and that application was based on the alle-
gation that she could not bring an action in her own name. After
plaintiff’s attorney had replied to the argument, defendant’s
attorney raised the further question that the agreement between
plaintiff and defendant to purchase certain fixed property on her
behalf was not in writing and therefore of no legal effect. Plain-
tiff replied to this but the Assistant Native Commissioner clearly
did not consider giving a finding on this aspect of the case and
limited his judgment on the locus standi in judicio issue.

If the illegality issue was the only one on which the Assistant
Native Commissioner was called upon to give a decision, he might
well have refused an absolution judgment in which case his
finding was not appealable vide the case of Caro v. Tulley, 1910,
T.P.D., 1026.

Counsel for plaintiff has strongly argued that a mandate of
the nature apparent in this case need not be in writing. On the
other hand Counsel for defendant has argued just as strongly that
such a mandate must be in writing. Neither produced any
authorities in support of their respective submissions. In my
opinion these arguments are irrelevant as the absolution judgment
was not based on this issue.

However, I am not so certain that the agreement between a
principal and agent to purchase land on behalf of the principal
must be in writing. In fact the contrary is postulated by Nathan,
in his Common Law of South Africa, Vol. 2, page 968. where he
states that there is no rule that an agent should in all cases be
constituted by deed or written document. The requirements of
section thirty of Transvaal Proclamation No. 8 of 1902, are
limited to deed of sale signed by the principal, or if signed by
the agent then that agent must have been authorised in writing
to do so.

A distinction must be drawn between negotiating for the pur-
chase of land and the actual signing of a deed of sale. In my
opinion, as already mentioned, the law does not appear to prohi-
bit an agent from entering into negotiations for the sale of land
without a written authority from his principal to do so.

Bowstead on Agency, 6th Edition, page 138, Article 49, states
that where an agent who is employed to purchase property on
behalf of his principal, purchases it in his own name or on his
own behalf and it is conveyed or transferred or otherwise made
over to him, he becomes a trustee thereof for the principal.

In Article 43 on page 107 of the Law of Agency in South
Africa by De Villiers and Macintosh (1933 Edition) under the
heading “ Duty to deliver Property ” it is mentioned that this i.e.
duty to deliver property, applies to all property received for the
principal or acquired by the agent ex causa mandati. If the agent,
in breach of his duty, has bought property for himself with his
principal’s money, he must account for it to his principal; but the
actual dominium is in him, so that he can give a good title to an
innocent third party.

The plaintiff in the instant appeal has in my opinion made out
a prima facie case that the property was to be purchased on her
behalf and therefore an onus rests on the defendant to refute her
allegations.

In my view the appeal should be allowed with costs, the
judgment of the Court a quo should be set aside and in lieu
thereof an entry made in the record that the application for abso-
lution is refused, and that the case should be remitted to the
Assistant Native Commissioner concerned for trial to a con-
clusion.

Garcia (Member): I concur in the judgment of the learned
President.

For Appellant: Adv. Curlewis instructed by Messrs. McRobert,
de Villiers and Hitge.

For Respondent : Adv. Badenhorst instructed by Mr. W. L.
van Eck.

293

NORTH-EASTERN NATIVE APPEAL COURT.

MDHLULI V. KUMALO.

N.A.C. Case No. 93/52.

Pretoria: 4th December 1952: Before Steenkamp, President;

Balk and Garcia, Members of the Court.

COMMON LAW.

Children: Custody of adulterine children born during subsistence

of a civil marriage.

Summary: Plaintiff, who had formerly been married by

Christian rites to Tryfina, the present Native customary wife
of the defendant, sued defendant for custody of two illegiti-
mate children born to Tryfina during the subsistence of the
marriage between plaintive and Tryfina.

Held: That the type of union between the mother of an
adulterine child and the man who was her husband at the
time she bore it, where there has been no subsequent civil
marriage between such mother and the natural father of the
illegitimate child, dictates the question of its custody.

Held further: That as it is clear that the adulterine children in
the instant action were born to their mother during the
subsistence of a marriage according to civil rites between her
and the plaintiff, the custody of those children falls to be
determined according to Common Law.

Cases referred to:

Zwana v. Dhlamini, 1, N.A.C. (N.E.), 353.

Mdina v. Panlane, 1917, N.A.C., 56.

Statutes referred to:

Section twelve of Law No. 46 of 1887 (Natal).

Section ten of Act No. 7 of 1934.

Appeal from the Court of the Native Commissioner, Piet
Retief.

Steenkamp (President) :

In the Native Commissioner’s Court the plaintiff (now respon-
dent) sued the defendent (now appellant) for the delivery and
custody of two minor children.

In his summons the plaintiff avers that he and Tryfina Kumalo
(born Ntsele) were married by civil rites and that that marriage
was dissolved by the Native Divorce Court on the 24th February,
1949, in an action for divorce brought by him on the ground
that Tryfina had committed adultery with the present defendant.
He further alleges that as a result of that adultery two girls —
twins — were born, namely Ntongolozi and Ntomizodwa. These
are the two children whose custody the plaintiff claims and whom
he alleges are with the defendant.

The Native Commissioner awarded the two children to the
plaintiff. A note appears on the record that he applied Common
Law. An appeal has now been noted to this Court on the
following grounds: —

“ 1. That the judgment of the Court is opposed to the
principles of public policy and natural justice, in that.
The judgment tends to rob a mother of the custody of
her children and to give such custody to a man, who
is not the father of the children and who is practically
a total stranger to the children.

2. That the Court should not give the custody of the children
to the plaintiff on the grounds: —

294

(a) The plaintiff in his request for the custody of the
children is not moved by a feeling of love or affec-
tion for the children.

ib) That the plaintiff’s request is actuated by avarice and
in the hope of obtaining lobolo that may in future,
be paid for the two children.

3. That it is not in the interest of the children that they
should be taken away from their mother and given to
a man who is a total stranger to them.”

It is common cause that the plaintiff and Tryfina were married
by civil rites, that during the subsistence of that marriage she
committed adultery with the defendant and that as a result of
that adultery the two children concerned were born. The plain-
tiff testified that Tryfina and the defendant are living together as
man and wife, but there is the uncontroverted evidence for the
defendant, which was properly accepted by the Native Commis-
sioner, that the defendant and Tryfina have contracted a
customary union.

This case calls for a crisp decision whether the plaintiff is
entitled to claim the custody of these two adulterine children.
If he and Tryfina had been married by Native Law and Custom
then, on the authority of the case of Zwane v. Dhlamini, 1,
N.A.C. (N.E.), 353, he would have been entitled to their custody,
as it is trite Native law that where a man enters into a customary
union with a woman the cattle he pays as lobolo begets any child-
dren born of that woman whether her husband is the farther or
not. The Native Commissioner in his reasons for judgment has
quoted Zwane’s case and that of Mdinda v. Pahlane, 1917, N.A.C.,
56, in support of his judgment awarding the custody of the child-
ren to the plaintiff but neither of these cases is in point here as
in both of them the union between the mother of the adulterine
children and the man who was her husband at the time she bore
them, was a customary one whereas in the instant action that
union is a marriage according to civil rites. Although the union
in question was referred to as marriage in Mdinda’s case, it is
obvious that it was in fact a customary union as the divorce was
granted by a Magistrate’s Court, see section twelve of Natal
Law No. 46 of 1887. Moreover in Mdinda’s case the claim was
in respect of the property rights in the adulterine child, which is
a totally different matter from a claim for the custody of the
adulterine child which is the issue in the instant case.

A sharp distinction must be drawn between civil marriages
and customary unions. In a civil marriage where it is proved, as
in this case, that the ex-husband of Tryfina is not the father of
those children, then their custody and guardianship belong to the
woman. If the order made by the Native Commissioner is
carried to its logical conclusion then the provisions of section
ten of Act No. 7 of 1934 could not be applied to the present case
as under the provisions of that Act the defendant and Tryfina may
at any time enter into a civil marriage and thereby legitimise the
two children in question. Defendant would then become the
guardian of those children.

As the type of union between the mother of an adulterine
child and the man who was her husband at the time she bore it,
dictates the question of its custody, and as in the instant action it
is clear that the adulterine children were born to their mother
during the subsistence of a marriage according to civil rites
between her and the plaintiff, the custody of those children falls
to be determined according to common law.

It should be added that although the Native Commissioner
noted in the record of the proceedings in the instant case that
common law was to be applied, it is clear from his reasons for
judgment that he in fact erroneously applied Native law in
arriving at his decision awarding the custody of the children to
the plaintiff.

295

In the result 1 am of the opinion that the appeal should be
allowed with costs and that the Native Commissioner’s judgment
should be altered to one dismissing the summons with costs.

Garcia (Member): I concur.

Balk (Permanent Member):

1 concur in the learned President’s judgment on the under-
standing that what has been stated in the third last paragraph
thereof regarding the type of union dictating the question of
custody, is not to be regarded as the sole criterion except in
cases in which there has been no subsequent civil marriage
between the mother of the adulterine child and its natural father,
as is the position in the instant case.

For appellant: Adv. V. d. Byl (i/b Messrs .Stegmann,

Oosthuizen and Jackson).

Respondent in default.

CENTRAL NATIVE APPEAL COURT.

KHABANE v. KHABANE.

N.A.C. Case No. 23/51.

Kroonstad: 9th December, 1952. Before Warner, Acting

President, Coertze and Alfers, Members of the Court.
Succession and Inheritance — Marriage by Civil Rights with Com-
muntiy excluded following on customary union.

Deceased contracted a customary union with a woman named
Mina and paid lobolo in respect of her. Afterwards deceased
went to live at Kroonstad leaving Mina at Senekal. While at
Kroonstad deceased contracted a marriage with a woman named
Mapuleng, community of property being excluded in terms of
section twenty-two (6) of Act No. 38 of 1927. In an enquiry held
in terms of section 3 of Government Notice No. 1664 of 1929 a
Native Commissioner declared the eldest son of Mina to be sole
heir and entitled to the property in the estate. In an appeal
it was contended that Mapuleng was entitled to the estate by
virtue of the civil marriage.

Held: That as the customary union was still subsisting when
the marriage was contracted, the widow of the marriage had no
greater rights in respect of the deceased than she would have if
the marriage had been a customary union.

Held further: That the eldest son of the customary union was
heir of deceased according to Native Custom and was, there-
fore, entitled to the estate.

vpfprrpcl tn'

Bobotyane v. Jack [1944, N.A.C. (C & O), 9].

Statutes, etc., referred to:

Sections twenty-two (3) and twenty-two (7) of Act No. 38 of
1927.

Appeal from the Court of the Native Commissioner, Kroonstad.
Warner, Acting President, delivering judgment of the Court: —
This is an appeal against the finding of the Native Commis-
sioner, Kroonstad, in an inquiry held in terms of section three
of Government Notice No. 1664 of 1929.

The following facts are not in dispute: —

1. In 1916 the late Sello Khabane contracted a customary union

with a woman named Mina and paid 10 cattle and a
horse as lobolo.

2. Sello and Mina lived together at Senekal for some years as

man and wife and three children were born, including a
male named Klaas.

296

3. Afterwards Sello went to live at Kroonstad, leaving Mina

at Senekal.

4. On the 16th November, 1935, Sello contracted a marriage

with a woman named Mapuleng at Kroonstad.

5. Community of property was excluded from this marriage

in terms of section, twenty-two (6) of Act No. 38 of 1927
and, in contracting the marriage, Sello described himself
as a bachelor.

6. Sello Khabane died on 28th December, 1950, leaving an

intestate estate consisting of a house on Stand No. 171 A in
the Kroonstad Municipal location, and two cows and their
calves.

Klaas Khabane (respondent), assisted by his guardian Ent
Khabane, claimed to be the heir to the estate on the ground that
he was the eldest son of deceased by his customary union with
Mina, while Mapuleng Khabane (appellant) claimed the estate
as being the widow of the late Sello Khabane as a result of
his marriage by civil rites.

After hearing evidence the Native Commissioner gave the
following finding; —

“ Klaas Khabane declared as sole heir, Ent Khabane
declared guardian. Guardian appointed as executor to trans-
fer Erf No 171A Location to Klaas Khabane, also to take
possession of two cows and calves. It follows that only trans-
fer in terms of letter of authority dated 12/2/51 issued by
Native Commissioner, Kroonstad, is set aside, Ent Khabane
as guardian entitled to cost of application.”

Appellant has appealed on the following grounds: —

(1) The Native Commissioner erred in finding that the customary

union between Sello Khabane and Mina Khabane, born
Rangkate, still subsisted when the civil marriage between
Sello Khabane and Mapuleng Khabane was contracted.

(2) The Native Commissioner irregularly and in breach of his

duties, although he was requested to do so, failed to take
the necessary steps to have the statutory declaration made
by the late Sello Khabane in terms of section twenty-two

(3), Act No. 38 of 1927, produced at the enquriy.

(3) That even if the finding of the Native Commissioner is

correct, that the Native customary union between Sello
Khabane and Mina Khabane still subsisted at the time of
the civil marriage between Sello Khabane and Mapuleng
Khabane, then the Native Commissioner erred in declar-
ing Klaas Khabane sole heir, for the following reasons: — ■

(a) In that event only such of the movables owned by the

late Sello Khabane at the time of his civil marriage
could be awarded to Klaas Khabane.

(b) Movables acquired by the late Sello Khabane after
his civil marriage should be dealt with as if the said
Sello was a European.

This case came before this Court at its Session in January, 1952,
when it was returned in order that it might be decided whether
the customary union between Mina and Sello was subsisting at
the time when the civil marriage between Sello and Mapuleng was
contracted.

In his reasons for judgment, the Native Commissioner has
stated : “ I am of opinion that Klaas Khabane being the eldest
son of the customary marriage is entitled to inherit.” We take
this to mean that he found as a fact that the customary union
had not been dissolved but was still subsisting when the marriage
was contracted.

The evidence that the customary union had been contracted
was not contradicted and no attempt was made to show that it

297

had been dissolved when the marriage was contracted. Appellant
called a witness named Robert Sello who stated that he was
friendly with deceased who discussed his family affairs with him.
This witness stated: “He told me that he had a wife at Senekal
but that he was going to leave her because his wife was pregnant
to his brother and he told her she could remain with his brother

as his wife.” Mina stated that deceased never told her that he

was leaving her or that he was not the father of her children
Matsewa and Klaas.

Section twenty-two (3) of Act No. 38 of 1927 reads as follows: —
“ No minister of the Christian religion authorized under
any law to solemnize marriage, nor any marriage officer, shall
solemnize the marriage of any Native male person unless
he has first taken from such person a declaration as to
whether there is subsisting at the time any customary union

between such person and any woman other than the woman

to whom he is to be married and, in the event of any such
union subsisting, unless there is produced to him by such
person a certificate under the hand of a magistrate or Native
Commissioner that the provisions of this Section hereinbefore
set out have been duly complied with.”

When deceased Sello Khabane contracted a marriage with
Mapuleng, he described himself as a bachelor. The declaration
required of him in terms of section twenty-two (3) of Act No. 38
of 1927 was not produced but this, in our opinion, does not affect
the issue because a declaration by him that there was no customary
union subsisting between him and any woman other than Mapu-
leng would not necessarily be correct. Deceased may have been
under the mistaken impression that his customary union with
Mina had been dissolved but the question as to whether it had
been dissolved is a question of law.

The following passages occur in the judgment in the case of
Bobotyane v. Jack [1944, N.A.C. (C. & O.), 91 quoted on page 139
of Whitfield’s South African Native Law (Second Edition): —
“ The keystone of the union is lobolo, and while the lobqlo
is retained by the wife’s group the union continues to subsist.
During the husband’s lifetime all the children borne by the
wife belong to him. No other man can contract a valid
union with her even by a payment of lobolo while the
first lobolo remains with her father or his heir, unless he,
the husband, has publicly repudiated her and forfeited the
lobolo .... Native Law does not recognise a dissolution of
a union by mere desertion of the wife or husband, by
abandonment or even by bare repudiation, for these are all
eventualities provided for by the lobolo cattle . . . Native
Law requires something more than mere unilateral act or
repudiation to terminate the union. On the part of the
husband, he has the right to repudiate his wife, with forfeit-
ure of his lobolo if the act be unjustified in Native law, but
before the wife can act on such repudiation and remarry it
is necessary either to return all or some of the lobolo. or to
take the matter before the headman or chief and obtain a
public repudiation by the husband.”

In the present case, we have the uncontradicted evidence that
deceased contracted a customary union with Mina and there is
no evidence that this union was dissolved by return of lobolo
or public repudiation. It follows, therefore, that the customary
union was still subsisting when deceased contracted a marriage
with Mapuleng.

As the marriage was contracted after the commencement of
Act No. 38 of 1927 and during the subsistence of the customary
union, the provisions of section twenty-two (7) of the Act are
applicable, in terms of which the material rights of the partner
of the customary union or any issue thereof are not affected, and
the widow of the marriage has no greater rights in respect of
the estate of deceased than she would have had if the marriage
had been a customary union.

298

If Mapuleng, the widow of the marriage, had contracted a
customary union, she would have been the right hand wife of
deceased. After the death of the latter, she would be entitled to
be properly maintained by the heir but the estate would devolve
upon such heir [see pages 253 and 254 Whitfield’s South African
Native Law (Second Edition) and the cases quoted thereon].
In view of the provisions of section twenty-two (7) of Act No. 38
of 1927, her rights in respect of the estate are no greater than these
in spite of the fact that she contracted a marriage with deceased.

Klaas Khabane, as eldest son of deceased, is heir and entitled
to succeed to the estate.

The appeal is dismissed with costs.

Coertze and Alfers (Members) concurred.

For Appellant: Mr. J. R. D. van Renen, Kroonstad.

For Respondent: Mr. J. N. Dreyer, Kroonstad.

SOUTHERN NATIVE APPEAL COURT.

Mlagqabi v.r. Magqabi.

N.A.C. Case No. 31/52.

Butterworth 17 September, 1952. Before Warner, Acting
President; Bowen and Whitfield, members of the court.

LAW OF SUCCESSION.

Enquiry in terms of section three (3) of Government Notice
No. 1664 of 1929 — Succession to quitrent allotment by son
of Christian Marriage contracted after death of wife married
according to Native Custom — Interpretation of section nine
(1) of Proclamation No. 142 of 1910.

Respondent, a son of the deceased registered holder (of the
quitrent allotment) by a Christian marriage contracted after
the death of his first wife to whom he was married by Native
Custom, was awarded a certain garden lot held under the
provisions of Proclamation No. 227 of 1898. Appellant was the
third son of the first wife (principal house) and in the absence
of his two elder brothers (and their issue) claimed that he was
entitled to succeed to the allotment in terms of the tables
of succession published under Government Notice No. 142 of
1910 and read with section 23 (2) of Act No. 38 of 1927.

The appeal is lodged on the grounds that the Court erred in
disregarding the fact that the late Ncanywa was in occupation
of the Garden Lot in question prior to his second marriage and
that it should have awarded the said lot to the son of the marriage
by Native Custom.

Held:

1. That it was only after the application of Proclamation

No. 227 of 1898 to the District of Nqamakwe (by
Proclamation No. 41 of 1902) and only after certain
conditions has been fulfilled {vide section four of Proc-
lamation No. 227 of 1898) that the allotments which
natives previously had the right to occupy, became their
property.

Held:

2. That as the late Ncanywa married his second wife by

Christian Rites in 1903 and received title only in 1906,
the “wife” within the meaning of section ^^ine (1) of
Proclamation No. 142 of 1910 must be held to be the
“ wife ” ^ho was such when title to the land was
acquired by the deceased, and such land must devolve
on such “ wife’s ” son.

299

Held:

3. That despite the definition of “ house ” in section thirty-
five of Act No. 38 of 1927 (Native Administration Act,
1927), a son of a Christian marriage, can inherit a
quitrent allotment, as to hold otherwise would lead
to a manifest contradiction of the apparent purpose
of the enactment.

Cases referred to:

(a) Dlalo V. Ndwe (4 N.A.C. 189).

(b) Tonjeni v. Tonjeni [1947 N.A.C. (C. & O.) 8].

Statutes referred to:

(а) Government Notice No. 1664 of 1929.

(б) Proclamation No. 110 of 1879 (section 43).

id) Proclamation No. 41 of 1902.

(e) Act No. 38 of 1927 [sections twenty-three (2) and thirty-
five].

Appeal from the Court of the Native Commissioner,
Nqamakwe.

Warner (Acting President):

This is an enquiry in terms of section three (3) of Govern-
ment Notice No. 1664 of 1929 to dertermine the person entitled
to succeed to Garden Lot No. 9 in Location No. 10 called
Ncisininde, Nqamakwe district, registered in the name of
Ncanywa Magqabi.

The facts are not in dispute. The late Ncanywa married a
woman by native custom. She bore him four sons namely (1)
Mangaliso (deceased) who had a son named Ndabayitetwa who
is the registered owner of Garden Lot No. 10, and a son named
Johannes who resides in the district of Komgha; (2) Maci who
was adopted by Lahlani; (3) Magade (appellant); and (4) Griffiths
who died without male issue. This wife died and subsequently
on the 11th August, 1903, Ncanywa married a woman named
Julia by Christian rites. This woman bore four sdns, the eldest
of whom is Solomon (respondent), a landless married adult.
Ncanywa had been in occupation of an arable allotment and on
the 23rd April, 1906, title deed was issued in his favour in respect
of Garden Lot No. 9 which corresponded approximately with the
arable allotment previously held by him. Ncanywa died in 1916
and his widow Julia used the Garden Lot until her death in 1950.

Magade claimed the land on the ground that, the eldest son
of the first wife being dead and his sons not being eligible
and the second son having been adopted by another family, he
(Magade) was the eldest eligible son of the first wife who,
he submitted, was the great wife while Julia, the wife married
by Christian rites, was the Right Hand wife.

Solomon claimed the land on the ground that Ncanywa
had acquired it after his marriage to Julia by Christian rites
and he (Solomon) was the eldest son of this marriage.

The Assistant Native Commissioner declared that Solomon
Magqabi was the person entitled to succeed to the lot in
question and Magade has appealed against this finding on the
ground that it is against the law in that —

(a) The Assistant Native Commissioner did not summon before
him all the parties concerned, viz.: the sons of the late
Mangaliso, viz.; Ndabayitetwa and Johannes as he is
required to do by section three (3) of Government Notice
No. 1664 of 1929;

300

(b) the Assistant Native Commissioner erred in disregarding
the fact that the late Ncanywa was in occupation of
Garden Lot No. 9 prior to his second marriage and
should have awarded the said lot to son of the marriage
by native law and custom; and

the claimant Solomon Magqabi was the son of a “ house ”
in view of the fact that the said Solomon is a son of a
Christian marriage.

Paragraphs (a) and (c) were abandoned in this Court so that
we are concerned with paragraph (b) only.

Section forty-three of Proclamation No. 110 of 1879, which was
in force in the District of Nqamakwe, reas as follows: —

“ Each such Headman shall, as soon as practicable, submit
to the Chief Magistrate a list of the members of the tribes
resident within, or belonging to, his subdivision, to whom
he proposes that a tract of land should be allotted for
occupation; and such allotment, subject to such alteration
and amendment as may be found necessary by the said
Chief Magistrate, shall be made accordingly and lists of all
such allotments shall be thereupon made and kept on
record in the said office.”

Proclamation No. 41 of 1902 provided that the provisions of
Proclamation No. 227 of 1898, as amended, should apply to
the district of Nqamakwe and the final sentence of section four
of the latter Proclamation reads as follows; —

“ The Locations shall be surveyed, and the available
extent of arable land therein, after due allowance has
been made for commonage and for dwelling sites, and after
allotments to claimants specially recommended, as herein-
before provided, shall be divided into allotments of four
morgen each, more or less, which shall be granted to such
persons named in the list hereinbefore mentioned, as the
Governor shall approve.”

It is clear from the foregoing that, prior to the application of
Proclamation No. 227 of 1898, land in the district of Nqamakwe
could be allotted to natives for occupation and after such
application these allotments could be granted to them with the
approval of the Governor. In other words, it was only after
the application of this Proclamation and after certain conditions
had been fulfilled, that the allotments which, previously, they
had the right to occupy, became their property.

The late Ncanywa married Julia by Christian rites on the 11th
August, 1903. Government letter in respect of the Garden Lot
in question was dated 10th September, 1904, and the title deed
was dated 23rd April, 1906. In the case of Dlalo v. Ndwe
(4 N.A.C. 189) it was stated: — “The wife within the meaning
of section nine (1) of the Proclamation must be held to be the
wife who was such when title to the land was acquired by the
deceased.”

In the case of Tonjeni v. Tonjeni [1947 N.A.C. (C. & O.) 8]
in dealing with the rights of a woman married by Christian rites,
it was stated : “ Property acquired by her husband after her
marriage would devolve on her son.”

In the present case there is no doubt that deceased Ncanywa
acquired the land, the property in dispute, after his marriage
to Julia by Christian rites.

In terms of section twenty-three (2) of Act No 38 of 1927, the
land devolves upon one male person in accordance with tables of
succession which, for the Transkeian Territories, are laid down
in the Third Schedule to Proclamation No. 142 of 1910. The
relative clause is No. 1 and it reads as follows: — “ (1) His
eldest son of the principal house or such eldest son’s senior
male descendant.”

301

It has been argued that the son of the Christian marriage
cannot inherit in terms of this clause in view of the definition
of “ house ” in section thirty-five of Act No. 38 of 1927. If
we follow this argument to its logical conclusion it would mean
that if a man had only one wife, whom he married by Christian
rites, a son of this wife would not be able to inherit his land.

In the case of Shata v. Shata, 1942 N.A.C. (C. & O.) 42
it was stated: —

“When the language of a statute, in its ordinary meaning
and grammatical construction, leads to a manifest contra-
diction of the apparent purpose of the enactment, or to some
inconvenience and absurdity, hardship or injustice, presumably
not intended, a construction may be put on it which modi-
fies the meaning of the words, and even the structure of
the sentence, by, amongst other things, interpolating other
words, under the influence, no doubt, of an irresistible
conviction that the Legislature could not possibly have
intended what its words signify, and that the modifications
thus made are mere corrections of careless language and
really give the true meaning (see Maxwell at page 198).
A sense of the possible injustice of an interpretation ought
not to induce judges to do violence to well-settled rules of
construction, but it may properly lead to the selection of
one rather than the other of two reasonable interpretations
{ibid, page 174).”

In the case of Tonjeni v. Tonjeni supra it was stated that a
woman married by Christian rites is in the eyes of the law her
husband’s only wife and her status is independent of any of her
husband’s houses.

For these reasons, we are of opinion that the eldest son of the
woman who was married to deceased by Christian rites is entitled
to succeed to the land which was acquired by deceased after
such marriage.

The appeal is dimissed with costs.

Bowen (Member): I concur.

Whitfield (Member): I concur.

For Appellant: Mr. S. Mahoud, Butterworth.

For Respondent: Mr. A. J. C. Kockott, Nqamakwe.

‘'''V'li /

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